United States v. Abu Khatallah

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
AHMED SALIM FARAJ ABU
KHATALLAH,
Case No. 14-cr-00141 (CRC)
also known as “Ahmed Abu Khatallah,”
also known as “Ahmed Mukatallah”
also known as “Ahmed Bukatallah”
also known as “Sheik,”
Defendant.
MEMORANDUM OPINION
On September 11 and 12, 2012, a U.S. diplomatic compound in Benghazi, Libya was
attacked, resulting in the deaths of four Americans, including United States Ambassador to Libya
J. Christopher Stevens. In an eighteen-count superseding indictment, a grand jury charged
Defendant Ahmed Salim Faraj Abu Khatallah with orchestrating and participating in the attack.
Abu Khatallah has moved to dismiss all but one of the counts. He alleges that most of the
statutes he is charged with violating cannot be applied to conduct undertaken outside of the
United States, that one of them is unconstitutionally vague and overbroad, and that the two
facilities destroyed in the attack do not meet the applicable statutory definitions of “federal
facilities” or “U.S. property.” For the reasons discussed below, the Court will deny the motions
as to all but two of the counts challenged. The Court will, by separate order, request
supplemental briefing with respect to those counts.
I. Factual and Procedural Background
During the civil war that erupted in Libya in early 2011, the rebel group seeking to
overthrow Muammar Gaddafi, the Transitional National Council (“TNC”), established its base of
operations in the city of Benghazi. On February 25, 2011, the U.S. Department of State
evacuated American personnel from Libya and suspended its operations at the U.S. Embassy in
Tripoli. Less than two months later, the State Department reestablished its presence in the
country through the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens.
According to the State Department’s official report on the Benghazi attack, on June 21, 2011,
Stevens moved into what would become a U.S. Special Mission compound. See Accountability
Review Bd., U.S. Dep’t of State, Benghazi Attack Report 14 (Unclassified) (2012),
http://www.state.gov/documents/organization/202446.pdf (“State Department Report”). The
compound was eventually comprised of “a diplomatic outpost, known as the U.S. Special
Mission,” where a contingent of U.S. State Department personnel were based, and a second
“facility . . . , known as the Annex,” where a contingent of other U.S. personnel were based.
Indictment ¶¶ 5–6.
The United States officially recognized the TNC as Libya’s governing authority the
following month, on July 15, 2011, and Gaddafi was ousted from power only a few weeks later.
The U.S. Embassy in Tripoli reopened with a temporary-duty staff in September 2011. Stevens
continued as Special Envoy to the TNC in Benghazi until he left the country on November 17,
2011. The Special Envoy position was not filled after Stevens’s departure, but he returned to
Libya as Ambassador in May 2012, operating out of the U.S. Embassy in Tripoli. According to
the State Department Report, “2012 saw an overall deterioration of the security environment in
Benghazi, as highlighted by a series of security incidents involving the Special Mission,
international organizations, non-governmental organizations . . . , and third-country nationals and
diplomats.” Id. at 15; see also id. at 15–16.
2
Ambassador Stevens traveled to Benghazi to visit the Mission compound on September
10, 2012. Stationed at the compound and present during the Ambassador’s visit were
Information Management Officer Sean Patrick Smith; Assistant Regional Security Officer Scott
Wickland; Assistant Regional Officer David Ubben; Security Officers Tyrone Snowden Woods
and Glen Anthony Doherty; and a Security Officer the Indictment refers to only as “Mark G.”
See Indictment ¶ 16; State Dep’t Report 18.
The Mission and Annex were attacked on September 11 and 12, 2012. In two phases
beginning on the evening of September 11 and lasting into the morning of September 12, armed
intruders deployed small-arms and machine-gun fire, rocket-propelled grenades, and mortars at
both facilities. See State Dep’t Report 4. Buildings on the compound burned, and the fire spread
to the Mission building housing Ambassador Stevens during his stay. Ambassador Stevens,
Smith, Woods, and Doherty were killed in the attacks.
On July 15, 2013, a criminal complaint and arrest warrant issued for Abu Khatallah,
whom the Department of Justice suspected of conspiring to commit and participating in the
attack. Just under one year later, on June 16, 2014, a team of U.S. special military forces
captured Abu Khatallah south of Benghazi. He was then transported to the United States aboard
a Navy ship, the USS New York. According to news sources, Libya condemned the capture,
calling for Abu Khatallah’s return to Libya for trial. See Ulf Laessing & Ahmed Elumami,
Libya Condemns U.S. Arrest of Benghazi Suspect, Demands His Return, Reuters (June 18, 2014,
10:11 AM), http://www.reuters.com/article/2014/06/18/us-libya-security-
idUSKBN0ET1KQ20140618#TGChTGE0utFtJmxL.97.
A grand jury sitting in Washington, D.C. issued an initial indictment against Abu
Khatallah within two weeks, and a superseding indictment approximately four months later, on
3
October 14, 2014. The Superseding Indictment (“Indictment”) identifies the Defendant as
Ahmed Salim Faraj Abu Khatallah, also known as Ahmed Abu Khatallah, Ahmed Mukatallah,
Ahmed Bukatallah, and “Sheik,” and describes him as having been “the commander of Ubaydah
Bin Jarrah . . . , an Islamist extremist militia in Benghazi, which had the goal of establishing
Sharia law in Libya,” until that group merged in 2011 with Ansar al-Sharia, “another Islamist
extremist group in Libya with the same goal,” and Abu Khatallah became the new group’s
“Benghazi-based leader.” Indictment ¶ 9. The Indictment notes that Abu Khatallah’s first entry
into the United States was in the District of Columbia. Id.
The eighteen-count Indictment charges Abu Khatallah with providing and conspiring to
provide material support to terrorists, resulting in death, under 18 U.S.C. § 2339A (Counts One
and Two); murder of an internationally protected person under 18 U.S.C. §§ 1116 and 1111
(Count Three); three counts of murder of an officer and employee of the United States under 18
U.S.C. §§ 1114 and 1111 (Counts Four through Six); three counts of attempted murder of an
officer and employee of the United States under 18 U.S.C. §§ 1114 and 1113 (Counts Seven
through Nine); four counts of killing a person in the course of an attack on a federal facility
involving use of a firearm and a dangerous weapon under 18 U.S.C. §§ 930(c) and 1111 (Counts
Ten through Thirteen); two counts of maliciously damaging and destroying U.S. property by
means of fire and an explosive, causing death, under 18 U.S.C. § 844(f)(1) and (3) (Counts
Fourteen and Fifteen); two counts of maliciously destroying and injuring dwellings and property
and placing lives in jeopardy within the special maritime and territorial jurisdiction of the United
States under 18 U.S.C. §§ 1363 and 7 (Counts Sixteen and Seventeen); and using, carrying,
brandishing, and discharging a firearm during a crime of violence under 18 U.S.C. § 924(c)
(Count Eighteen).
4
Abu Khatallah has filed a series of motions to dismiss all but Count Three of the
Indictment. He challenges Counts One and Two on the ground that 18 U.S.C. § 2339A is
unconstitutionally vague and overbroad; Counts Four through Eighteen in whole, and One and
Two in part, on the ground that the statutes under which he is charged in those counts do not
apply extraterritorially; and Counts Ten through Fifteen on the ground that the Mission and
Annex were not “federal facilities” under 18 U.S.C. § 930(g)(1) or “U.S. property” under 18
U.S.C. § 844(f). The Court held a hearing on these motions on October 16, 2015, with Abu
Khatallah present.
The Court will deny Abu Khatallah’s motions as to Counts One and Two, Four through
Fifteen, and Eighteen. The Court will reserve ruling on his motion as to Counts Sixteen and
Seventeen, and will request supplemental briefing from the parties on certain questions pertinent
to those counts by separate order.
II. Legal Standard
A criminal defendant “may raise by pretrial motion any defense, objection, or request that
the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Pretrial
motions may challenge “a defect in the indictment or information,” as long as “the basis for the
motion is then reasonably available and the motion can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(B). “‘Because a court’s use[] [of] its supervisory power to
dismiss an indictment . . . directly encroaches upon the fundamental role of the grand jury,’
dismissal is granted only in unusual circumstances.” United States v. Ballestas, 795 F.3d 138,
148 (D.C. Cir. 2015) (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir.
1995)). An indictment “only need contain ‘a plain, concise, and definite written statement of the
essential facts constituting the offense charged,’” id. at 149, in order “to inform the defendant of
5
the nature of the accusation against him,” id. at 148–49 (quoting United States v. Hitt, 249 F.3d
1010, 1016 (D.C. Cir. 2001)) (internal quotation marks omitted). “When considering a motion to
dismiss an indictment, a court assumes the truth of those factual allegations.” Id. at 149.
III. Analysis
A. Motion To Dismiss Counts One, Two, and Four Through Eighteen for Lack of
Extraterritoriality
Abu Khatallah has moved to dismiss all but Count Three of the eighteen-count
Indictment on the ground that most of the statutes he is charged with violating do not apply to his
actions in Libya as a matter of statutory construction. Recent Supreme Court decisions have
indeed sharply limited the extraterritorial application of federal statutes. Unless Congress clearly
intended as much, the Court has said, federal statutes do not apply abroad. But these restrictive
expressions have all appeared in civil cases. An almost century-old case, United States v.
Bowman, 260 U.S. 94 (1922)—which the Supreme Court has never repudiated—appears to
leave significantly more room for the extraterritorial application of criminal statutes, even though
recent decisions explicitly say that the same presumption against extraterritoriality applies to all
cases. Abu Khatallah’s arguments about the charged offenses’ geographic reach require this
Court to reconcile and synthesize these increasingly divergent strands of case law. The D.C.
Circuit has attempted just such a harmonization, and this Court must follow its mode of analysis.
1. Generally Applicable Principles of Extraterritoriality
The Supreme Court has repeatedly—and quite recently—insisted that “[w]hen a statute
gives no clear indication of an extraterritorial application, it has none.” Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659, 1664 (2013) (quoting Morrison v. Nat’l Australia Bank Ltd.,
130 S. Ct. 2869, 2878 (2010)). Phrased slightly differently, “there must be present the
affirmative intention of the Congress clearly expressed.” Id. (quoting Benz v. Compania Naviera
6
Hidalgo, 353 U.S. 138, 147 (1957)). “[C]ongressional silence” on extraterritoriality therefore
“means no extraterritorial application,” Morrison, 130 S. Ct. at 2881, as does a merely
“plausible” showing of intended extraterritorial application, EEOC v. Arabian American Oil Co.,
499 U.S. 244, 250 (1991) (“Aramco”). Phrases like “clear indication” and “convincing
indication,” Small v. United States, 544 U.S. 385, 391 (2005), suggest that the required quantum
of proof is significantly more than a preponderance. And the burden of making the necessary
affirmative showing is on the party seeking to apply a statute extraterritorially. Aramco, 499
U.S. at 250. Importantly, the Supreme Court has instructed courts to “apply the presumption in
all cases” in which an extraterritorial offense is alleged. Morrison, 130 S. Ct. at 2881 (emphasis
added).
The presumption against extraterritoriality is a “canon of construction . . . rather than a
limit upon Congress’s power to legislate.” Morrison, 130 S. Ct. at 2877. The canon rests on a
defeasible assumption about congressional intent—that “Congress ordinarily legislates with
respect to domestic, not foreign matters.” Id. This assumption may or may not be factually
correct in individual cases. But the presumption is meant to relieve judges from having to “guess
anew in each case” by “divining what Congress would have wanted if it had thought of the
situation before the court.” Id. at 2881. Congress is on notice that courts apply the presumption
across the board, which ensures a “stable background against which Congress can legislate with
predictable effects.” Id. Regardless of what Congress actually intends, the predictable effect of
not clearly authorizing extraterritorial application will be no extraterritorial application. Of
course, Congress remains free to modify statutes that courts have construed not to apply abroad
(as it has done before). Id. at 2883 n.8.
7
Aside from administrability and predictability concerns, the presumption against
extraterritoriality is also rooted in ideas of institutional competence and the separation of powers.
Its robust application “protect[s] against unintended clashes between our laws and those of other
nations which could result in international discord.” Kiobel, 133 S. Ct. at 1664 (quoting
Aramco, 499 U.S. at 248). Displacement of the presumption means that aliens can be sued (or
prosecuted) and tried in American courts for acts committed in their home countries, even if their
acts were perfectly lawful there. The political branches alone are equipped to make “such an
important policy decision where the possibilities of international discord are so evident.” Id.
(quoting Benz, 353 U.S. at 147). The presumption against extraterritoriality therefore precludes
judges from inferentially triggering such “significant foreign policy implications” in the absence
of deliberate congressional choice. Id. at 1665. But whether this concern permeates any
individual case is irrelevant: The “presumption applies regardless of whether there is a risk of
conflict between the American statute and a foreign law.” Morrison, 130 S. Ct. at 2877–78.
So strong is the presumption, the Supreme Court has said, that geographically unbounded
terms like “every” and “any” fail to rebut it. Kiobel, 133 S. Ct. at 1665; Small, 544 U.S. at 388;
Foley Bros. v. Filardo, 336 U.S. 281, 287 (1949). Even statutory definitions of commerce that
specifically refer to “foreign commerce” do not “definitely disclose an intention to give . . .
extraterritorial effect.” Aramco, 499 U.S. at 251. Perhaps most strikingly, Kiobel very recently
held that the Alien Tort Statute (“ATS”) “does not imply extraterritorial reach” even though it
permits actions by “alien[s]” for “violation[s] of the law of nations.” Kiobel, 133 S. Ct. at 1663,
1665. That was true even though one such violation (piracy) “typically occurs . . . beyond the
territorial jurisdiction of the United States.” Id. at 1667. The two other paradigmatic law-of-
nations violations contemplated by the ATS—“violation of safe conducts” and “infringement of
8
the rights of ambassadors,” id. at 1666—could easily occur abroad and are creatures of
international relations. Yet they, too, fail to displace the presumption against extraterritoriality.
Id.
The Supreme Court has slightly diluted the presumption’s potency by conceding that it is
“not . . . a ‘clear statement rule.’” Morrison, 130 S. Ct. at 2883. A statute need not say “this law
applies abroad”; “[a]ssuredly context can be consulted as well.” Id.; see also Small, 544 U.S. at
391 (recognizing “statutory language, context, history, or purpose” as proper tools for rebutting
the presumption); Foley, 336 U.S. at 286 (concluding that a statute’s legislative history revealed
a “concern with domestic labor conditions”). Any indication of congressional intent is very
likely material, regardless of its source. Yet context, purpose, legislative history, and statutory
structure are unavailing unless they amount to a “clear indication” of intended extraterritoriality.
Kiobel, 133 S. Ct. at 1664. According to the Supreme Court, this sometimes-multifaceted
inquiry is neither “complex” nor “unpredictable in application.” Morrison, 130 S. Ct. at 2878.
And the D.C. Circuit very recently explained that contextual evidence tending to displace the
presumption must be traceable to the statutory text. See Validus Reinsurance, Ltd. v. United
States, 786 F.3d 1039, 1047 (D.C. Cir. 2015) (“[C]ourts must find clear and independent textual
support—rather than relying on mere inference—to justify the nature and extent of each statutory
application abroad.”) (quoting Keller Found./Case Found. v. Tracy, 696 F.3d 835, 845 (9th Cir.
2012)).
2. Harmonizing the Apparent Civil/Criminal Divide
As detailed above, the modern Supreme Court has instructed lower courts to apply the
presumption “in all cases.” Morrison, 130 S. Ct. at 2881. Such insistence on across-the-board
uniformity seems to foreclose doctrinal tests that would allow the presumption to be more easily
9
rebutted in certain kinds of cases. Nonetheless, a nearly century-old chestnut of
extraterritoriality doctrine—United States v. Bowman, 260 U.S. 94 (1922)—sits uneasily with
Aramco, Morrison, and Kiobel. In practice, Bowman requires a lesser evidentiary showing of
congressional intent to permit the extraterritorial application of certain kinds of federal criminal
statutes. Its application may well require judges to “guess anew in each case,” Morrison, 130 S.
Ct. at 2881, often under a shroud of empirical uncertainty. Yet the Supreme Court has not yet
attempted to reconcile the stability-serving values undergirding recent civil decisions like
Morrison and Kiobel with the reality that Bowman is “not easy to administer.” Id. at 2879.
Because Bowman remains binding on the lower courts, this Court must assume that satisfying
Bowman is one way of “clear[ly] indicati[ng]” a federal statute’s extraterritorial reach, id. at
2878—even if Bowman itself requires no “affirmative” evidence of a deliberate congressional
decision to permit overseas applications. Kiobel, 133 S. Ct. at 1664.
a. The Facts and Holding of United States v. Bowman
The defendants in Bowman had allegedly conspired to defraud the Emergency Fleet
Corporation—all of whose stock was owned by the United States—on board a ship approaching
Brazil. Bowman, 260 U.S. at 95. The crux of the indictment was that the defendants had made
(and conspired to make) a “false or fraudulent claim” against a “corporation in which the United
States of America is a stockholder.” Id. at 96, 100 n.1. Neither party disputed that all relevant
actions had occurred outside American soil. If Bowman had never been decided, faithful
application of recent Supreme Court precedents might well dictate a finding of no
extraterritoriality on these facts alone. For the mere statutory reference to “any corporation in
which the United States of America is a stockholder,” id. at 100 n.6, would not rebut the
presumption any more than statutory language encompassing “every contract,” “any court,” “any
10
person,” or “any civil action.” Foley Bros., 336 U.S. at 287; Small, 544 U.S. at 387; Morrison,
130 S. Ct. at 2881; Kiobel, 133 S. Ct. at 1665.
The Bowman Court took a starkly different approach, however. It began its analysis by
observing that “the necessary locus [of proscribed activity], when not specially defined, depends
upon the purpose of Congress as evinced by the description and nature of the crime.” Id. at 97.
Bowman postulated two broad types of crimes for these purposes. First were “[c]rimes against
private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson,
embezzlement and frauds of all kinds.” Id. at 98. These offenses principally “affect the peace
and good order of the community,” and so must seemingly be committed within the political
community that they disturb. Id. If Congress intends to punish such crimes extraterritorially, “it
is natural for [it] to say so in the statute, and failure to do so will negative the purpose of
Congress in this regard.” Id.
But a different rule of construction applies to “criminal statutes which are, as a class, not
logically dependent on their locality for the Government’s jurisdiction, but are enacted because
of the right of the Government to defend itself against obstruction, or fraud wherever
perpetrated.” Id. For these offenses, “to limit their locus to the strictly territorial jurisdiction
would be greatly to curtail the scope and usefulness of the statute and leave open a large
immunity for frauds as easily committed by citizens on the high seas and in foreign countries as
at home.” Id. Congress “has not thought it necessary” to explicitly enable their overseas
application, instead “allow[ing] it to be inferred from the nature of the offense.” Id.
The Bowman Court held that the charged crime fell comfortably within this second
category. The statute had been amended in 1918 to encompass false claims harmful to
corporations in which the United States owned stock. Id. at 101. The Court found that this
11
provision “was evidently intended to protect the Emergency Fleet Corporation,” which was
“expected to engage in, and did engage in, a most extensive ocean transportation business” that
serviced “every great port of the world open during [World War I].” Id. at 101–02. Two key
factors informed the Court’s decision: that Congress had sought to stifle “frauds upon the
Government,” and—because of background assumptions about the Emergency Fleet
Corporation’s worldwide business—that those frauds were likely to occur “on the high seas and
in foreign ports and beyond the land jurisdiction of the United States.” Id.
Bowman also supplemented its holding (if only in dictum) with a list of six other federal
crimes whose nature commanded an inference of extraterritorial application. Because Bowman
has been entirely absent from the Supreme Court’s modern extraterritoriality decisions, these six
crimes are important data points for understanding Bowman’s underlying rationale. The Court
noted that all six appeared in a chapter of the U.S. Code entitled “Offenses against the operations
of the Government,” id. at 98–99; each crime had evidently been designed to forestall some
tangible or intangible harm to the U.S. Government. In asserting that each of the following
offenses would apply extraterritoriality, the Court also commented on the statutes’ anticipated
geographic reach:
(1) A consul’s knowingly certifying a false invoice. “Clearly the locus of this crime as
intended by Congress is in a foreign country . . . .” Id. at 99.
(2) Forging or altering a ship’s papers. “The natural inference from the character of the
offense is that the sea would be a probable place for its commission.” Id.
(3) Enticing desertions from the naval service. Congress must have “intend[ed] by this to
include such enticing done aboard ship on the high seas or in a foreign port, where it
would be most likely to be done.” Id.
(4) Bribing an officer of the U.S. civil, military, or naval service to violate his duty or to
aid in committing a fraud on the United States. The Court concluded that it would
“hardly [be] reasonable to construe this not to include offenses” directed at consuls,
ambassadors, and military officers “in a foreign country or on the high seas.” Id.
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(5) Defrauding the United States in the disposition of property captured as prize. “This
would naturally often occur at sea, and Congress could not have meant to confine it to
the land of the United States.” Id.
(6) Stealing or embezzling property of the United States furnished or intended to be used
for military or naval service. “It would hardly be reasonable to hold that” Congress
did not intend to punish offenses against U.S. military property located “in foreign
countries, in foreign ports or on the high seas.” Id. at 100.
In sum, for statutes whose geographic reach is ambiguous, satisfying Bowman first
requires proof that a criminal offense directly harms the U.S. Government. Bowman also
suggested that the presumption against extraterritoriality cannot be rebutted inferentially unless
the enacting Congress very likely envisioned, and can be assumed to have authorized, a
considerable number of extraterritorial applications. Yet whether Bowman’s preconditions are
satisfied is hardly a mechanical inquiry. Bowman left open the key question of how many
foreseeable extraterritorial applications are necessary to warrant the inference that Congress
“clearly” intended to allow prosecutions for acts occurring overseas. Its treatment of two
statutory examples suggested that the number of expected extraterritorial offenses must outweigh
domestic ones—that the former must be “probable” or “most likely.” Id. at 99. But Bowman’s
fifth example pointed toward a looser “locus” test for extraterritoriality—that the crime “would
naturally often occur” abroad. Id. The D.C. Circuit’s resolution of this issue in favor of the
latter formulation must guide this Court’s analysis of Abu Khatallah’s extraterritoriality
challenges.
b. The D.C. Circuit’s Application of Bowman: United States v.
Delgado-Garcia
Along with other lower courts, the D.C. Circuit has sought to reconcile modern
extraterritoriality doctrine’s across-the-board, rule-like rigor with the more flexible and
individualized inquiry required in criminal cases by Bowman. Its reading of Bowman precludes
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two possible approaches to this case: (1) to proceed as if the Supreme Court has overruled
Bowman sub silentio and apply only the restrictive test outlined in Aramco, Morrison, and
Kiobel; or (2) to assume that federal crimes designed to prevent harm to the U.S. Government
necessarily satisfy Bowman (and so apply extraterritorially) absent a clear indication to the
contrary.
The defendants in United States v. Delgado-Garcia, 374 F.3d 1337, 1339 (D.C. Cir.
2004), were charged with (in the court’s words) “conspiring to induce aliens illegally to enter the
United States” and “attempting to bring illegal aliens into the United States,” in violation of 8
U.S.C. § 1324(a). All relevant conduct occurred outside the United States. Id. The defendants
moved to dismiss the indictment, claiming that § 1324(a) does not apply extraterritorially
because the statute is silent on its geographic reach. The Delgado-Garcia court disagreed, citing
“specific textual evidence” and “contextual factors” as affirmative evidence that Congress
intended for § 1324(a) offenses to be prosecutable regardless of where they might occur. Id. at
1344–45. The court situated its analysis firmly within the framework established by Bowman,
deeming it a “persuasive precedent” for the Government’s position. See id. at 1346. Abu
Khatallah therefore misses the mark in asking this Court to eschew Bowman on the theory that it
“did not discuss the presumption against extraterritoriality which has since become the
cornerstone of all jurisdictional analyses.” Def.’s Reply Supp. Mot. Dismiss (“Reply”), ECF No.
111, 2 n.1.
But Delgado-Garcia also forecloses the expansive reading of Bowman espoused by the
Government at the oral hearing on Abu Khatallah’s motions—that any federal criminal statute
designed to prevent harm to the U.S. Government necessarily applies abroad absent an
affirmative indication of congressional intent to cabin its reach. Hearing Prelim. Tr. 30.
14
According to Delgado-Garcia, the generally worded statute at issue in Bowman applied abroad
“because the Emergency Fleet Corporation . . . ‘was expected to engage in, and did engage in, a
most extensive ocean transportation business.’” Delgado-Garcia, 374 F.3d at 1346 (emphasis
added); see also id. (“Because of this expectation, the Court reasoned, many persons who
commit the crime of defrauding a U.S. corporation would do so overseas, and therefore the
statute had extraterritorial application.” (emphasis added)).
The Government’s reading of Bowman echoes Judge Rogers’s dissenting opinion in
Delgado-Garcia. She understood Bowman to mean that when Congress “protect[s] the United
States government from harm,” it generally must be assumed to have done so “irrespective of
[the harm’s] origin.” Id. at 1355 (Rogers, J., dissenting). For such crimes, in other words, “it is
obvious that in declaring them to be crimes Congress intends to prohibit them everywhere.” Id.
at 1354. The majority rejected this line of reasoning, concluding that it “is for Congress, not this
Court,” to decide whether particular acts would “harm the United States government even if
[they were] completed abroad.” Id. at 1346 (majority opinion) (alteration in original) (quoting
id. at 1355 (Rogers, J., dissenting)). 1 The Delgado-Garcia majority offered a different
explanation of what it means for federal criminal offenses to be “not logically dependent on their
locality”—that they “have many obvious extraterritorial applications.” Id. at 1346–47.
Delgado-Garcia held that both § 1324(a) crimes charged in the indictment met this
standard (and thus applied extraterritorially). After explaining that the statute satisfied
1
The Court thus rejects the Government’s gloss on Bowman—that a federal criminal law
applies abroad whenever “the statute’s purpose would be undermined were its scope confined to
the United States’ territorial boundaries.” Govt.’s Opp’n Def.’s Mot. Dismiss, ECF No. 101
(“Opp’n”) 5.
15
Bowman’s “harm” prong because it sought to protect the integrity of U.S. borders, id. at 1345, 2
the court shifted to a lengthy discussion of Bowman’s “locus” element. Reasoning purely from
the text and structure of § 1324(a), the court found that the crimes of attempting to bring an
unauthorized alien into the United States and conspiring to encourage or induce illegal
immigration both “applie[d] to much extraterritorial conduct.” Id. at 1347. First, because
“[b]ringing’ someone suggests . . . physical proximity” to the person sought to be brought,
“many [failed] attempts to bring someone into the United States will occur outside the United
States.” Id. And second, the court reasoned that it would be “much easier” to conspire to
encourage or induce illegal immigration “outside the United States, in proximity to those who
carry out the plot.” Id. at 1348. The conspiracy provision therefore “contemplates application to
much extraterritorial conduct.” Id.
In this Circuit, then, Bowman is satisfied when (1) a federal criminal offense directly
harms the U.S. Government, and (2) enough foreseeable overseas applications existed at the time
of a statute’s enactment (or most recent amendment) to warrant the inference that Congress both
contemplated and authorized prosecutions for extraterritorial acts. Delgado-Garcia’s “locus”
inquiry specifically asks whether a statute “ha[s] many obvious extraterritorial applications,” id.
at 1347, or whether offenders “will often be outside the United States,” id. 3 As long as such a
2
The Court found that the very nature of the harm tended to undermine the presumption against
extraterritoriality: Because border-protection statutes are “fundamentally international, not
simply domestic, in focus and effect,” it “makes no sense to presume that such a statute applies
only domestically.” Id.
3
Delgado-Garcia offered several virtually identical formulations of this standard. See, e.g., id.
at 1346 (“[M]uch of the conduct that § 1324(a) criminalizes occurs beyond the borders of the
United States.”); id. at 1347 (concluding that § 1324(a) “applies to much extraterritorial
conduct”); id. (observing that “many” proscribed attempts would occur overseas); id. at 1347–48
(finding that the charged conspiracy offense “has many natural extraterritorial applications”); id.
at 1348 (noting that § 1324(a) “has a great many international applications”).
16
likelihood existed when the statute was passed—whether because of the nature of the offense (as
in Delgado-Garcia), contingent facts about the United States’s presence abroad, or some
combination thereof—courts may properly infer a congressional intent to permit extraterritorial
uses. This process yields the necessary “clear indication of an extraterritorial application.”
Morrison, 130 S. Ct. at 2878. It is not enough, as the Government suggests, that a statute seek to
protect U.S. interests that “lie, or may very well lie, outside the United States.” Govt.’s Opp’n
Def.’s Mot. Dismiss, ECF No. 101 (“Opp’n”) 7. Nor may judges attempt to divine “what
Congress would have wanted if it had thought of the situation before the court.” Morrison, 130
S. Ct. at 2881. With these principles in mind, the Court now turns to Abu Khatallah’s individual
statutory challenges.
3. Abu Khatallah’s Statutory Challenges
Abu Khatallah concedes that Congress intended the offense charged in Count Three (18
U.S.C. § 1116, murder of an internationally protected person) to apply extraterritorially. But he
has moved to dismiss Counts Four through Eighteen in their entirety, and Counts One and Two
insofar as they charge him with providing material support for any crime other than killing an
internationally protected person. In all, Abu Khatallah challenges the extraterritorial application
of six distinct crimes or sets of associated crimes. In a separate order, the Court will request
supplemental briefing on one of them (18 U.S.C. § 1363, criminalizing certain actions within the
special maritime and territorial jurisdiction of the United States). It will consider Abu
Khatallah’s five other extraterritoriality challenges in turn.
a. 18 U.S.C. § 1114: Murder and Attempted Murder of Officers
and Employees of the United States
Counts Four through Six charge Abu Khatallah with murder in violation of 18 U.S.C.
§ 1114; counts Seven through Nine charge him with attempted murder in violation of § 1114.
17
That statute reads, in full:
Whoever kills or attempts to kill any officer or employee of the United States or
of any agency in any branch of the United States Government (including any
member of the uniformed services) while such officer or employee is engaged in
or on account of the performance of official duties, or any person assisting such
an officer or employee in the performance of such duties or on account of that
assistance, shall be punished—
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section 1112; or
(3) in the case of attempted murder or manslaughter, as provided in section 1113.
Section 1114 does not explicitly reference extraterritorial application, so such prosecutions must
be justified by Bowman, if at all. The Court does not doubt—nor does Abu Khatallah contest—
that § 1114 targets a form of harm suffered directly by the U.S. Government. Under Delgado-
Garcia, then, just one question remains: Did § 1114 “have many obvious extraterritorial
applications” when it was enacted (or most recently amended)?
Cautious of its institutional limitations in resolving an issue of this nature, the Court
answers affirmatively. The parties have not informed the Court as to when § 1114 was either
originally enacted or last amended. That law appears to have remained in its current form since
being amended as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, § 727(a), 110 Stat. 1214. Nor have the parties provided concrete information on the
number of U.S. officers and employees working and residing abroad, either in 1996 or today.
The Government asserts (though without substantiation) that “[t]he United States government
has over one hundred thousand officers and employees stationed abroad.” Opp’n 8. Abu
Khatallah has not questioned this estimate. Because a purely territorial statute cannot become
extraterritorial as a result of changing conditions—only a deliberate congressional choice can
rebut the presumption—present-day figures matter only insofar as they indirectly reflect what
18
conditions either obtained when a statute was passed or were understood to be likely to exist in
the future.
Here, the Court is satisfied that § 1114 “ha[d] many obvious extraterritorial applications”
when the law was last amended in 1996—enough to have put Congress on notice of the issue of
extraterritoriality and to permit an inference under Bowman that the law was intended to reach
conduct undertaken outside the United States. It is widely known that then, as now, large
numbers of U.S. diplomats and Foreign Service Officers, military servicemembers, members of
the intelligence community, and other government personnel served the United States’s interests
abroad. Executive and legislative officials (and their staff) also frequently traveled—and
obviously still do—outside the United States in the course of performing their official duties.
See also United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011) (“[A] significant number
of [U.S.] employees perform their duties outside U.S. territory.”). Such U.S. employees and
officials could obviously be killed while engaging in or on account of performing their official
duties. Under Delgado-Garcia, this is enough to conclude that Congress authorized
extraterritorial prosecutions under § 1114. Abu Khatallah may well be correct that “the focus of
the legislation was domestic,” Reply 4, whereas the Delgado-Garcia court found the relevant
statute to be “fundamentally international . . . in focus and effect,” 374 F.3d at 1345. Yet
Bowman still allows an inference that Congress intended to authorize overseas prosecutions for
crimes enacted in the wake of purely domestic incidents. Under Delgado-Garcia, a criminal
offense whose most natural or obvious applications are domestic can still be prosecuted abroad if
the law had “many obvious extraterritorial applications” at the time of enactment. Id. at 1346–
47.
Abu Khatallah nonetheless argues that a comparison between § 1114 and § 1116, which
19
criminalizes the murder of internationally protected persons, reveals that Congress did not intend
for § 1114 to apply extraterritorially. Both statutes were amended in 1996; whereas § 1116
broadened the “internationally protected person” category to reach “any other representative,
officer, employee, or agent of the United States Government,” § 1114 remained generally
worded and geographically ambiguous. Def.’s Mot. Dismiss, ECF No. 91 (“Mot. Dismiss”) 5.
As a result, Abu Khatallah claims, § 1116’s amendment “would have been unnecessary if
Congress had intended § 1114 to apply to the extraterritorial killing of all [U.S.] officers and
employees.” Id. at 5–6. The Court is not persuaded. To qualify as an internationally protected
person, one must be, “at the time and place concerned[,] . . . entitled pursuant to international law
to special protection against attack.” 18 U.S.C. § 1116(b)(4)(B). Such an element is missing
from § 1114. Section 1116 “appl[ies] to a relatively small subset of the broad class of United
States employees and officers covered by Section 1114.” United States v. Bin Laden, 92 F.
Supp. 2d 189, 203 (S.D.N.Y. 2000). Such modest overlap between the two statutes is not
enough to upend the method of analysis called for by Delgado-Garcia.
Other statutes not cited by Abu Khatallah lend some credence to his position that “when
Congress intend[s] a homicide statute to apply extraterritorially, it specifically state[s] so.” Mot.
Dismiss 6. One of them, 18 U.S.C. § 1751, criminalizes (among other things) assassinating the
President, Vice President, or President-elect. This statute would seem to satisfy Bowman rather
easily. Yet it specifically clarifies that “[t]here is extraterritorial jurisdiction over the conduct
prohibited by this section.” Id. § 1751(k). A similar law prohibiting the killing of members of
Congress, cabinet heads, Supreme Court Justices, and directors of specified intelligence agencies
also explicitly permits prosecutions for extraterritorial conduct. 18 U.S.C. § 351(i). On the other
hand, a number of federal criminal statutes designed to prevent harm to the Government that
20
would frequently occur abroad are expressly limited to domestic offenses. Congress apparently
understood that Bowman would otherwise apply in these instances, but for some reason chose to
limit its operation. Such criminal offenses include discriminating against persons wearing the
uniform of the armed forces, 18 U.S.C. § 244; commencing or facilitating an expedition against a
friendly nation, 18 U.S.C. § 960; and enlisting “to serve in armed hostility against the United
States,” 18 U.S.C. § 2390. The Court therefore declines to demand clear statements of
extraterritorial application in this case—essentially, to render Bowman toothless—merely
because some criminal statutes have not relied on Bowman to signal their geographic reach.
The D.C. Circuit’s recent refusal to permit a Bivens cause of action to remedy harm
inflicted extraterritorially does not change the Court’s analysis. In Meshal v. Higginbotham, 804
F.3d 417 (D.C. Cir. 2015), decided after the Court heard argument on Abu Khatallah’s motion,
the D.C. Circuit offered the following hypothetical in declining to recognize the asserted implied
private right of action: “If Congress had enacted a general tort cause of action applicable to
Fourth Amendment violations committed by federal officers (a statutory Bivens, so to speak),
that cause of action would not apply to torts committed by federal officers abroad absent
sufficient indication that Congress meant the statute to apply extraterritorially.” Id. at 425 (citing
Morrison, 130 S. Ct. at 2877). That statement fully coheres with this Court’s analysis. Bowman
and Delgado-Garcia continue to govern whether the presumption has been rebutted for criminal
statutes. Under current law, satisfying Bowman furnishes a “sufficient indication that Congress
meant the statute to apply extraterritorially.” Id. Nor is this Court the first to hold that § 1114
reaches abroad under Bowman. See Al Kassar, 660 F.3d at 118; Bin Laden, 92 F. Supp. 2d at
202; United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir. 1984).
21
For the foregoing reasons, the Court will deny Abu Khatallah’s motion as to Counts Four
through Nine, which charge him with violating 18 U.S.C. § 1114.
b. 18 U.S.C. § 930(c): Killing a Person in the Course of an
Attack on a Federal Facility Involving the Use of a Firearm or
Other Dangerous Weapon
Counts Ten through Thirteen charge Abu Khatallah with violating 18 U.S.C. § 930(c).
Section 930 provides, in relevant part:
(c) A person who kills any person . . . in the course of an attack on a Federal
facility involving the use of a firearm or other dangerous weapon, or attempts or
conspires to do such an act, shall be punished as provided [elsewhere].
***
(g) As used in this section:
(1) The term “Federal facility” means a building or part thereof owned or
leased by the Federal Government, where Federal employees are regularly
present for the purpose of performing their official duties.
Because § 930 is silent on its geographic reach, Bowman must again guide the Court’s
extraterritoriality analysis. Bowman’s “harm” test is clearly satisfied here—the act of killing
someone in the course of an attack on a federal facility directly harms the U.S. Government. The
remaining question is whether § 930(c) offenses are “not logically dependent on their locality,”
meaning that the provision had “many obvious extraterritorial applications” when it was enacted
(or most recently amended). Delgado-Garcia, 374 F.3d at 1346–47.
Abu Khatallah points out that § 930(c) was added to 18 U.S.C. § 930 as part of the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 60014, 108
Stat. 1796. He argues that because some other provisions of this omnibus legislation expressly
permitted prosecutions for conduct abroad, Congress cannot be said to have clearly authorized
the extraterritorial use of § 930(c). Mot. Dismiss 8. Abu Khatallah further claims that the
22
“obvious focus” of this statute is “Federal facilities within U.S. territory,” id. 9, for “§ 930(c)
was passed as part of a series of laws targeting murder committed by escaped prisoners, murder
of state or local officials assisting federal law enforcement officials, the protection of court
officers and jurors, and the retaliatory killings of witnesses, victims, and informants.” Reply 6–
7.
Yet a criminal statute whose legislative history and neighboring provisions are bereft of
foreign references may still apply extraterritorially if Bowman’s “harm” and “locus” elements
(as understood by Delgado-Garcia) are both satisfied. Again, the Government has not provided a
concrete figure for or independently substantiated how many federal facilities exist outside the
United States. But it has assured the Court that they number in the “hundreds.” Opp’n 12. Abu
Khatallah does not contest this approximation. Cf. Bin Laden, 92 F. Supp. 2d at 201–02
(observing that “a significant number of Federal facilities are located outside the United States”).
The Court notes that embassies, consulates, and other diplomatic missions would seem to be
fairly encompassed within § 930(g)(1)’s definition of “Federal facility,” as would the component
structures of military bases. Such structures were no doubt similarly prevalent when § 930(c)
was enacted in 1994. The Government also asserts that “many [Federal facilities abroad] are in
more dangerous areas than Federal facilities within the United States,” which presumably alerted
Congress to the likelihood of attacks on overseas facilities for reasons apart from those facilities’
sheer numerosity. Opp’n 12. The Court hesitates to impute an ignorance of these conditions to
the enacting Congress. Accordingly, the Court joins the Southern District of New York in
concluding that § 930(c) applies extraterritorially under Bowman, because that law had many
foreseeable extraterritorial applications at the time of enactment. See Bin Laden, 92 F. Supp. 2d
at 201–02. The Court will therefore not dismiss Counts Ten through Thirteen for lack of
23
extraterritoriality.
c. 18 U.S.C. § 844(f)(1) & (3): Maliciously Damaging and
Destroying U.S. Property by Means of Fire and an Explosive
Causing Death
Counts Fourteen and Fifteen charge Abu Khatallah with violating 18 U.S.C. §§ 844(f)(1)
& (3). Sections 844(f)(1) and (3) provide:
(f)(1) Whoever maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building, vehicle, or other personal
or real property in whole or in part owned or possessed by, or leased to, the
United States, or any department or agency thereof, or any institution or
organization receiving Federal financial assistance, shall be imprisoned for not
less than 5 years and not more than 20 years, fined under this title, or both.
***
(3) Whoever engages in conduct prohibited by this subsection, and as a result of
such conduct directly or proximately causes the death of any person, including
any public safety officer performing [his] duties, shall be subject to the death
penalty, or imprisoned for not less than 20 years or for life, fined under this title,
or both.
As with § 1114 and § 930(c), § 844(f) contains no provision explicitly authorizing extraterritorial
use. The Court will therefore analyze § 844(f)’s geographic reach under the Bowman
framework. Damaging or destroying U.S. property unquestionably harms the U.S. Government.
So again, the remaining issue is whether § 844(f) had “many obvious extraterritorial
applications” at the time of its enactment or most recent amendment. Delgado-Garcia, 374 F.3d
at 1347.
The Court answers in the affirmative. Statutory “Federal facilities”—buildings owned or
leased by the U.S. Government, where federal employees are regularly present for the purpose of
performing their official duties—are but a subset of “personal or real property in whole or in part
owned or possessed by, or leased to, the United States, or any department or agency thereof.” 18
24
U.S.C. § 844(f)(1). The enacting Congress 4 cannot have envisioned considerably fewer overseas
applications of a more expansive category of crimes. Because the Court has already concluded
that Bowman permits extraterritorial prosecutions under § 930(c), the Government may
necessarily proceed under § 844(f), as well. Again, the Southern District of New York has held
likewise. See Bin Laden, 92 F. Supp. 2d at 198.
Abu Khatallah insists that § 844(f) “does not have an international focus.” Mot. Dismiss
10. For all the Court can tell, he is correct. Abu Khatallah argues that the congressional activity
preceding § 844(f)’s original enactment “clearly evidences the intent to address property within
the United States that had become vulnerable to a rash of bombings on account of protests
against the Vietnam War” and to expand federal investigative and prosecutorial authority over
such incidents. Reply 7. The Government offers no reason to doubt this account of the historical
forces driving § 844’s passage. But Abu Khatallah misunderstands the import of Delgado-
Garcia’s application of Bowman. To be sure, Delgado-Garcia characterized § 1324(a)’s border-
control provisions as “fundamentally international . . . in focus and effect.” Delgado-Garcia, 374
F.3d at 1345. Delgado-Garcia could have interpreted Bowman to mean that an offense is not
logically dependent on its locality when it will likely be committed overseas more often than not,
just as the court believed that § 1324(a) crimes would be. Yet the D.C. Circuit articulated a more
permissive standard for satisfying Bowman’s “locus” element: whether a criminal statute “ha[s]
many obvious extraterritorial applications.” Id. at 1347. A prohibition can have many obvious
extraterritorial applications even if it is most readily and naturally deployed domestically.
Nor is it material that § 844(f) prohibits the damaging or destruction of “any institution or
4
Section 844(f) was originally passed as part of the Organized Crime Control Act of 1970, Pub.
L. No. 91-452, § 1102, 84 Stat. 956, and was last substantively modified in the Homeland
Security Act of 2002, Pub. L. No. 107-296, § 1125, 116 Stat. 2135.
25
organization receiving Federal financial assistance,” the great majority of which are presumably
located domestically. Section 844 clearly targets a vast range of destructive behavior undertaken
within the territorial United States. But its independently operative provisions that protect U.S.
property could foreseeably be applied abroad in a great number of situations; this must have been
known when the statute was modified in 2002, as well. As a result, the Court will deny Abu
Khatallah’s motion as to Counts Fourteen and Fifteen.
d. 18 U.S.C. § 924(c): Using, Carrying, Brandishing, and
Discharging a Firearm During a Crime of Violence
Count Eighteen charges Abu Khatallah with violating § 924(c)(1)(A). Section 924(c)
provides, in relevant part:
(c)(1)(A) . . . [A]ny person who, during and in relation to any crime of violence or
drug trafficking crime (including a crime of violence or drug trafficking crime
that provides for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be prosecuted in a court
of the United States, uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not
less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not
less than 10 years.
***
(3) For purposes of this subsection the term “crime of violence” means an offense
that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
26
Count Eighteen specifically charges Abu Khatallah with “us[ing], carry[ing], brandish[ing], and
discharg[ing] firearms . . . during and in relation to” every other offense with which he has been
charged. Indictment, Count Eighteen ¶ 2. Abu Khatallah has not disputed that each of these
other offenses qualifies as a “crime of violence” under § 924(c). He instead contends that
§ 924(c) offenses cannot be prosecuted extraterritorially because § 924(c) is a quintessentially
domestic provision enacted to help cleanse America’s streets and neighborhoods of violent
crime.
Section 924(c) nowhere explicitly authorizes extraterritorial prosecutions. If the Court
proceeded to apply Bowman, it would grant Abu Khatallah’s Motion as to Count 18. The crime
of “us[ing] or carr[ying]” a gun “during and in relation to any crime of violence” does not harm
the U.S. Government’s interests any more directly than the commission of any other federal
crime; § 924(c) was not enacted to equip the Government to “defend itself against obstruction[]
or fraud.” Bowman, 260 U.S. at 98. Rather, the statutory term “crime of violence” hinges upon
the actuality or prospect of “physical force against the person or property of another.” 18 U.S.C.
§ 924(c)(3). One lesson of Bowman is that “[c]rimes against private individuals or their
property” cannot be charged extraterritorially without a clear statement to that effect. Bowman,
260 U.S. at 98. The Government, moreover, has not sought to discredit Abu Khatallah’s account
of the reasons for § 924(c)’s enactment. That provision first appeared as part of the Omnibus
Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 902, 82 Stat. 233. Abu
Khatallah claims that § 924(c) is “set within a comprehensive statutory scheme regulating the
domestic licensing, trade and use of guns and other firearms” in order to counteract “the gun
violence problem within the United States.” Mot. Dismiss 11. For present purposes, the Court
27
will assume that all of this is correct, and that later statutory amendments evinced no
extraterritorial intentions.
Section 924(c) crimes are not ordinary substantive offenses, however. They depend on
the commission of a concurrent—and predicate—“crime of violence.” The role of § 924(c) is
simply to “add[] a weapon to the Government’s arsenal whenever a criminal uses a gun” in
committing such an act. United States v. Mardirossian, 818 F. Supp. 2d 775, 777 (S.D.N.Y.
2011). The D.C. Circuit has concluded that “the extraterritorial reach of an ancillary offense . . .
is coterminous with that of the underlying criminal statute.” United States v. Ali, 718 F.3d 929,
939 (D.C. Cir. 2013). The D.C. Circuit has not comprehensively explained what makes a crime
ancillary or substantive for purposes of extraterritoriality doctrine. See id. (merely citing “aiding
and abetting or conspiracy” as exemplary “ancillary offense[s]”). But § 924(c)—which appears
in a statutory section entitled “Penalties”—functions to regulate gun-related behavior in
connection with an underlying criminal offense. The Court therefore joins six other courts in
holding that § 924(c) applies abroad insofar as its predicate “crime of violence” may be
prosecuted extraterritorially. See United States v. Siddiqui, 699 F.3d 690, 701 (2d Cir. 2012);
United States v. Belfast, 611 F.3d 783, 814 (11th Cir. 2010); Mardirossian, 818 F. Supp. 2d at
777; United States v. Hasan, 747 F. Supp. 2d 642, 684–85 (E.D. Va. 2010); United States v.
Reumayr, 530 F. Supp. 2d 1210, 1219 (D.N.M. 2008); United States v. Emmanuel, No. 06-
20758-CR, 2007 WL 2002452, at *13 (S.D. Fla. July 5, 2007). To the Court’s knowledge, no
decision has ever held to the contrary.
Section 924(c) prohibits using or carrying a firearm “during and in relation to any crime
of violence” for which someone may be prosecuted in federal court. Abu Khatallah rightly
observes that “the use of the word ‘any’ in a statute does not [alone] convert it into one with
28
extraterritorial application.” Reply 9; see Validus, 786 F.3d at 1047. Yet for ancillary statutes,
words like “any” and “all” do maximize a derivative offense’s geographic reach by linking it to
that of the predicate crime. For example, nothing in the general federal conspiracy statute
reveals the slightest concern with overseas criminality. But when Congress prohibited
“conspir[ing] . . . to commit any offense against the United States,” 18 U.S.C. § 371 (emphasis
added), it affirmatively authorized extraterritorial conspiracy prosecutions insofar as the
underlying federal crime were found to reach abroad. This principle also applies to such classic
ancillary offenses as aiding and abetting and serving as an accessory after the fact. See 18
U.S.C. §§ 2–3. So the fact that § 924(c) is embedded in a series of domestically inspired anti-
crime provisions does not defeat § 924(c)’s derivative extraterritoriality in this case. Bowman
simply does not apply to ancillary criminal offenses; it does, of course, continue to govern the
geographic reach of predicate crimes.
The Supreme Court’s decision in Small v. United States, 544 U.S. 385 (2005), on which
Abu Khatallah relies, is not to the contrary. In that case, the Court considered the proper
interpretation of 18 U.S.C. § 922(g)(1), which made it “unlawful for any person . . . who has
been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one
year . . . to . . . possess . . . any firearm” (emphasis added). Small considered the values
underlying the presumption against extraterritoriality in holding that the phrase “convicted in any
court” applied only to convictions in American courts. Small, 544 U.S. at 391. The Court also
remarked that the “presumption would apply . . . were we to consider whether this statute
prohibits unlawful gun possession abroad as well as domestically.” Id. at 389. True, § 924(c)
contains its own possession offense. But the Small Court was almost certainly referring to the
prohibition of gun possession appearing in the very provision at issue in that case. Section
29
922(g)’s possession offense—unlike § 924(c)’s—is not ancillary, because it requires no linkage
(other than temporal) to ongoing criminal activity or efforts to shield it from detection. Small’s
dictum therefore does not prevent this Court from treating as ancillary § 924(c)’s crimes of using
or carrying a firearm “during and in relation to” a federal crime of violence, and possessing a
firearm “in furtherance of” such a crime. 18 U.S.C. § 924(c) (emphases added).
In short, the offenses underlying Count Eighteen—§ 924(c)’s crimes of using, carrying,
brandishing, and discharging a firearm during a crime of violence—apply overseas to the extent
that any predicate offenses do. The Government characterizes all other offenses with which Abu
Khatallah has been charged as crimes of violence; Abu Khatallah has not argued otherwise.
With the exception of 18 U.S.C. § 1363, on which the Court will request supplemental briefing,
the Court will soon have held that every predicate crime with which Abu Khatallah has been
charged may be prosecuted extraterritorially. As a result, the Court will deny Abu Khatallah’s
motion as to Count Eighteen.
e. 18 U.S.C. § 2339A: Providing Material Support and Resources
to Terrorists Resulting in Death (and Conspiring to Do the
Same)
Count One charges Abu Khatallah with conspiring to violate 18 U.S.C. § 2339A (“the
material-support statute”), and Count Two charges him with a substantive violation of that
statute. As with each of the offenses discussed above, § 2339A does not explicitly authorize
extraterritorial prosecutions. Section 2339A provides, in relevant part (with only potentially
applicable predicate offenses listed below):
(a) Offense. Whoever provides material support or resources or conceals or
disguises the nature, location, source, or ownership of material support or
resources, knowing or intending that they are to be used in preparation for, or in
carrying out, a violation of section . . . 844(f) . . . , 930(c), . . . 1114, 1116, . . . [or]
1363, . . . or in preparation for, or in carrying out, the concealment of an escape
from the commission of any such violation, or attempts or conspires to do such an
30
act, shall be fined under this title, imprisoned not more than 15 years, or both,
and, if the death of any person results, shall be imprisoned for any term of years
or for life.
Section 924(c) (corresponding to Count Eighteen) is the only crime with which Abu Khatallah
has been charged that cannot serve as a predicate for material-support liability, because it is
absent from § 2339A’s lengthy list of underlying offenses. Section 1116 (corresponding to
Count Three) explicitly authorizes extraterritorial prosecutions; the other four offenses
(corresponding to Counts Four through Seventeen) do not. Abu Khatallah therefore moves to
dismiss Counts One and Two insofar as they charge him with providing (or conspiring to
provide) material support for violations of §§ 844(f), 930(c), 1114, and 1363.
Unlike with respect to § 924(c)’s firearm offense, Abu Khatallah and the Government
agree that § 2339A is an ancillary crime that applies extraterritorially to the extent that an
associated substantive offense does. Mot. Dismiss 19; Opp’n 24. So as with § 924(c), Bowman
is not in play. Deciding whether to dismiss an ancillary offense for lack of extraterritoriality
requires no new analysis when the geographic reach of any predicate crimes has already been
determined. The Court therefore incorporates by reference its earlier holdings and denies Abu
Khatallah’s motion as to Counts One and Two. The Government may continue to proceed under
§ 2339A insofar as it charges Abu Khatallah with providing (or conspiring to provide) material
support for a violation of §§ 844(f), 930(c), 1114, or 1116. The Court will reserve judgment on
whether § 1363 may serve as a predicate offense for § 2339A liability on a set of extraterritorial
facts, pending the resolution of issues on which the Court will request supplemental briefing.
B. Motion To Dismiss Counts One and Two as Unconstitutionally Vague and
Overbroad
Abu Khatallah has also moved the Court to dismiss Counts One and Two of the
Indictment as unconstitutionally vague and overbroad. As previously noted, those Counts charge
31
Abu Khatallah with violating (and conspiring to violate) 18 U.S.C. § 2339A, which prohibits
“provid[ing] material support or resources or conceal[ing] or disguis[ing] the nature, location,
source, or ownership of material support or resources, knowing or intending that they are to be
used in preparation for, or in carrying out, a violation” of certain enumerated federal criminal
offenses. 18 U.S.C. § 2339A. The listed offenses include, inter alia, murder of an
internationally protected person, murder of an officer or employee of the United States,
attempted murder of an officer or employee of the United States, killing a person in the course of
an attack on a federal facility involving the use of a firearm and a dangerous weapon,
maliciously damaging and destroying U.S. property by means of fire and an explosive causing
death, and maliciously destroying and injuring dwellings and property with the special maritime
and territorial jurisdiction of the United States and attempting to do the same—all crimes with
which Abu Khatallah has been substantively charged. Abu Khatallah claims that this statute,
which falls under the heading “Providing material support to terrorists,” punishes only terrorist
activity. In his view, the statute provides no clear notice of when one’s conduct constitutes
“terrorism,” Def.’s Mot. Dismiss, ECF No. 92 (“Mot. Dismiss”) 5, and allows for “arbitrary and
capricious enforcement,” id. at 8, rendering it unconstitutionally vague under the Due Process
Clause of the Fifth Amendment. Abu Khatallah also claims that the material-support statute
punishes a substantial and excessive amount of protected speech and is therefore
unconstitutionally overbroad under the Free Speech Clause of the First Amendment, both as a
facial matter and as applied to him.
1. Whether the Material-Support Statute Applies Only to Actions
that Constitute “Terrorism”
According to Abu Khatallah, the material-support statute punishes only conduct that
32
constitutes terrorism. See Mot. Dismiss 5. He contends, however, that the statute is not
sufficiently definite with regard to what constitutes “terrorism” to provide fair notice of what
conduct is prohibited. Because the Government charged him with “provid[ing] material support
and resources to terrorists,” Indictment, Count Two ¶ 2 (emphasis added), he suggests, “[t]he
absence of a specific ‘terrorism’ element in § 2339A renders the statute unconstitutionally
vague,” Mot. Dismiss 6. The Government counters that it is irrelevant whether it alleged that
Abu Khatallah’s actions supported terrorism or whether the material-support statute defines the
term “terrorism.” In its view, the reason is simple: “[T]here is no statutory requirement that
[one’s] actions ‘qualify as terrorism’” to be guilty under § 2339A. Govt.’s Opp’n Def.’s Mot.
Dismiss, ECF No. 100 (“Opp’n”) 1. Rather, the statute criminalizes providing “material
support” with the knowledge or intent that such support will be used in preparation for, or in
carrying out, a set of enumerated criminal offenses that may or may not involve terrorist activity.
According to the Government, nothing in the “plain text . . . mandate[s] a showing of terrorist
conduct and the federal cases do not require such proof.” Id. at 5. Because “the government is
not required to show that [a defendant’s] material-support actions ‘qualify as terrorism,’” id. at 7,
it contends, the statute cannot be void for vagueness on the grounds that the term “terrorism” is
imprecise or undefined.
In response to the Government’s argument that his void-for-vagueness challenge falters
at the gate because the term that he considers vague—“terrorism”—has no necessary connection
to criminal liability under § 2339A, Abu Khatallah contends that “the plain language of the
statute (including the heading) . . . [and] the government’s enforcement of § 2339A
demonstrate[] that the statute is designed to punish material support for terrorism.” Def.’s Reply
Supp. Mot. Dismiss, ECF No. 113 (“Reply”) 4. Although Abu Khatallah is correct that the
33
material-support statute may have been designed to punish activity connected to terrorism, an
association with terrorism is not an element of the crime defined by § 2339A. As the
Government submits, criminal liability under § 2339A attaches regardless of any linkage to
terrorism. As a result, the statute need not provide any notice of what constitutes “terrorism” to
survive a void-for-vagueness challenge under the Due Process Clause.
a. Statutory Text
Abu Khatallah argues that “the plain language of the statute . . . demonstrates that”
criminal liability under “the statute requires some connection to terrorism.” Reply 3. Yet the
only “plain language” that Abu Khatallah points to is in the non-operative heading, which labels
§ 2339A as the crime of “[p]roviding material support to terrorists.” 18 U.S.C. § 2339A; see
also Bhd. of R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 528–29 (1947) (“[T]he title
of a statute and the heading of a section cannot limit the plain meaning of the text.”). True,
“statutory titles and section headings are tools available for the resolution of a doubt about the
meaning of a statute,” Fla. Dep’t of Rev. v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008),
but here the statutorily defined elements could not be clearer. To be criminally liable under
§ 2339A, the operative text specifies that a person must provide or conspire to provide “material
support,” as defined in the statute, in preparation for, or to carry out, the commission of certain
enumerated offenses. The text itself contains no requirement that one’s actions be connected to
terrorism.
b. Statutory History
Abu Khatallah further contends that the statute’s passage as an anti-terrorism measure
demonstrates that some connection to terrorism is required for criminal liability to attach under
§ 2339A. Reply 3 (citing United States v. Shah, 474 F. Supp. 2d 492, 495 (S.D.N.Y. 2007)
34
(“Section 2339A . . . is an anti-terrorism law enacted by Congress as part of the Violent Crime
Control and Law Enforcement Act . . . .”)). The Government readily concedes that § “2339A’s
enumerated offenses are ‘offenses of a type that terrorists commit,’” although it points out that
“they are ‘not all necessarily terrorist offenses.’” Opp’n 6. All that suggests, however, is that
Congress passed § 2339A primarily to combat terrorism—and that it did so by imposing
additional punishment on persons who provide material support to those who commit violent
federal offenses of a kind that terrorists commit. The mere fact that Congress may have enacted
§ 2339A with terrorism in mind does not require prosecutors to prove that a person charged
under that statute actually engaged in (or conspired to engage in) “terrorism.”
c. Statutory Enforcement
Finally, Abu Khatallah maintains that “the government’s enforcement of
§ 2339A also demonstrates that the statute is designed to punish [only] material support for
terrorism.” Reply 4. He asserts that “the government only uses § 2339A to prosecute material
support for offenses allegedly connected to terrorism” (observing that “[a] search of the U.S.
courts electronic case tracking system . . . in every federal district court reveals that in every case
in which the government has charged a violation of 18 U.S.C. § 2339A, the government has
alleged that the defendant provide[d] ‘support to terrorists.’”). Id. But whatever § 2339A may
have been “designed to” accomplish, the Government’s track record of pursuing alleged
terrorists under the statute does not bear on the statutorily defined elements of the crime. Nor
does the fact that “[t]he United States Attorneys’ Manual lists § 2339A as one of many
‘International Terrorism Statutes.’” Id. (citing U.S. Attorneys’ Manual § 9-2.136).
Although the Government may have consistently used § 2339A to prosecute those that it
alleges have provided “support to terrorists,” apparently no court has ever required the
35
Government to prove a specific connection to terrorism as an element of that crime. Abu
Khatallah’s own counsel “have found no reported decision in which a court addressed the issue
presented here—that is, the failure of § 2339A to define terrorism.” Reply 2. Yet they cite
scores of cases in which the Government has charged a violation of § 2339A. Id. at 4 n.1. If the
Government was required to prove that a defendant’s actions constituted “terrorism” in order to
secure a conviction under § 2339A, it is quite odd that in so many cases no court has ever
addressed “the failure of § 2339A to define terrorism.” Id. 2–3. The explanation, however, is
straightforward: Conviction under § 2339A does not require proof of terrorist conduct—only
proof of material support in preparation for, or in carrying out, at least one of an enumerated set
of violent offenses.
Because § 2339A does not include terrorist conduct as an element of criminal liability,
the Court will deny Abu Khatallah’s void-for-vagueness challenge that the statute provides
inadequate notice of what constitutes terrorism.
2. Whether Section 2339A Invites Arbitrary and Overreaching
Enforcement
In addition to claiming that the material-support statute is insufficiently definite with
respect to what constitutes terrorism, Abu Khatallah contends that it “also violates due process
because it grants too much enforcement discretion to the government.” Mot. Dismiss 7. He
argues that “[a]bsent the inclusion of a clear ‘terrorism’ element, § 2339A could be applied to a
host of garden variety criminal offenses not suited to the purpose of the federal law.” Id.
Yet the bulk of crimes for which providing material support would subject a person to
criminal liability under § 2339A are anything but “garden variety.” See 18 U.S.C. § 2339A
(criminalizing the provision of “material support” for, among other serious offenses, destroying
aircraft, transacting in nuclear materials, murdering internationally protected persons, developing
36
biological weapons, assassinating the President of the United States, and committing genocide).
And although Abu Khatallah correctly observes that someone who provides “material support”
for the federal crime of arson, for example, could also be charged under § 2339A, that is the
scheme that Congress has chosen to establish. That possibility, on its own, does not imply that
the material-support statute is inevitably susceptible to arbitrary enforcement.
More importantly, the material-support statute does not provide the Government with the
kind of “unfettered discretion” in enforcement that has been held to violate due process. See
Papachristou v. City of Jacksonville, 405 U.S. 156, 168 (1972). Abu Khatallah is undoubtedly
correct that a statute must provide “‘minimal guidelines’ to law enforcement authorities” in order
to pass constitutional muster under the Due Process Clause. Mannix v. Phillips, 619 F.3d 187,
197 (2d Cir. 2010 (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)). This requirement
renders unconstitutional laws that provide no standard for evaluating whether a suspect has
violated the statute in question, leaving “full discretion” in the hands of law enforcement to
determine whether or not a violation has occurred. See Kolender, 461 U.S. at 358–59. Section
2339A is not such a statute. It provides an exhaustive list of federal crimes for which a person
can be charged for providing “material support”—a term which courts have consistently found to
be clear and definite. See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 20–25 (2010).
Thus, an objective standard exists for evaluating whether a person’s conduct falls within the
prohibition of the material-support statute. That determination is not left to the unfettered
discretion of any law-enforcement officer. Section 2339A therefore does not invite the kind of
arbitrary and overreaching enforcement that would contravene constitutional due process.
3. Whether the Indictment Violates the Double Jeopardy Clause
Abu Khatallah shifts his focus to the Double Jeopardy Clause, U.S. Const. amend. V,
37
in response to the Government’s assertion that proving a violation of § 2339A does not require
proving any link to terrorism. He contends that “[i]f, as the government claims, § 2339A
requires no link to terrorism, the statute punishes only aiding and abetting or committing one of
the predicate offenses and is no different than punishing a violation of the predicate offense.”
Reply 9 (emphasis added). That, he says, renders his indictment “multiplicitous”—a violation of
the Double Jeopardy Clause—because it charges the same offense in multiple counts, thereby
unfairly increasing his exposure to criminal sanctions. Id. (citing United States v. Mahdi, 598
F.3d 883 (D.C. Cir 2010)).
Whether two counts are multiplicitous and thus violate the constitutional prohibition of
double jeopardy is assessed under the Blockburger test:
[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not,” i.e., whether either is a lesser included offense of the other.
Mahdi, 598 F.3d at 888 (quoting United States v. Weathers, 186 F.3d 948, 951 (D.C. Cir. 1999));
see also Blockburger v. United States, 284 U.S. 299, 304 (1932).
Applying this standard, Abu Khatallah contends that, “[a]s defined by the government,
providing material support in violation of § 2339A is the same offense as aiding and abetting or
committing the predicate offenses listed in § 2339A—neither requires proof of a fact that the
other does not.” Reply 10. He interprets the Government’s position to mean that “anyone who
provides material support knowing and intending that the support will be used to carry[] out one
of the predicate offenses[] also aids and abets or commits the underlying offense.” Id. If this
analysis is correct, then the Blockburger test implies that Counts One and Two (the material-
support counts) are multiplicitous with Counts Three through Seventeen, each of which alleges a
violation of one of the object offenses for which criminal liability might attach under § 2339A.
38
The proper remedy for this multiplicity problem, Abu Khatallah suggests, is to force the
Government to choose “between proceeding on the material support charges in Counts One and
Two and proceeding on the substantive offenses charged in Counts Three through Seventeen.”
Id.
The Government need not make this choice, however, because Abu Khatallah misapplies
the Blockburger test. Both the material-support statute and the object offenses require proof of a
fact or element that the other does not. For instance, to prove that a person has violated § 2339A,
the Government must prove that he has provided “material support,” defined as
any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel (1 or more individuals who may be or include oneself), and
transportation, except medicine or religious materials.
18 U.S.C.A. § 2339A. On the other hand, proving that a person has aided or abetted an offense
enumerated in § 2339A does not require proving that he has provided material support. See
United States v. Hassoun, 476 F.3d 1181, 1188 (11th Cir. 2007) (holding that proving the
commission of an offense enumerated in § 2339A “does not require proof that the defendant
provided material support or resources”). Specifically, to punish someone as an aider-and-
abettor, “[a]ll that is necessary is to show some affirmative participation which at least
encourages the principal offender to commit the offense.” United States v. Raper, 676 F.2d 841,
850 (D.C. Cir. 1982) (emphasis added); see also 18 U.S.C. § 2(a) (imposing criminal liability as
a principal for “counsel[ing]” someone to commit a crime). As the statutory definition makes
clear, proving that a person provided “material support” requires more than merely encouraging
or counseling someone to commit a crime. Thus, proving a violation of § 2339A requires
establishing a fact that proving a violation of any of the enumerated offenses does not.
39
The reverse is also true. To state the obvious, to establish that someone has committed
one of the object crimes enumerated in § 2339A, the Government must prove that object crime
has actually been completed—that is, the Government must prove all the elements of the object
offense. On the other hand, “the Government need not prove all the elements of . . . the object
offense[] in order to satisfy the elements of the substantive § 2339A charge.” Raper, 676 F.2d at
1188. Indeed, “the object offense need not even have been completed yet, let alone proven as an
element of the material support offense.” Id. Thus, proving a violation of any of the enumerated
offenses requires establishing a fact—the completion of the enumerated offense—that proving a
violation of § 2339A does not. Because the material-support statute and each of the object
offenses enumerated in the material-support statute require proof of an element not required by
any other, no two counts in the Indictment are multiplicitous. As a result, under the
Government’s interpretation of the elements that are required for criminal liability under
§ 2339A, with which the Court agrees, the Indictment does not violate the Double Jeopardy
Clause. The Court will therefore deny Abu Khatallah’s request that the Government elect
between proceeding with Counts One and Two or with Counts Three through Seventeen.
4. Whether Section 2339A Is Overbroad in Violation of the First
Amendment
Abu Khatallah also mounts a facial First Amendment challenge to § 2339A, contending
that it is overly broad because it “leaves open the possibility that a person may be punished for
engaging in protected speech, leading persons to avoid the protected conduct for fear of
uncertain proscriptions.” Mot. Dismiss 8. He also claims that the statute is overbroad “as
applied to” him, because some of the evidence that the Government lists in support of its
indictment “include[s] the beliefs he held and the messages he communicated.” Id. at 9. This
argument is without merit, and the federal courts to have considered it so far have resoundingly
40
rejected it. See, e.g., United States v. Sattar, 314 F. Supp. 2d 279, 305 (S.D.N.Y. 2004) (“On its
face, § 2339A is a legitimate exercise of Congress’ power to enact criminal laws that reflect
‘legitimate state interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.’”) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
1. Abu Khatallah’s Facial Challenge
Both Abu Khatallah and the Government proceed from the same premise: that “[a] law is
unconstitutionally overbroad if it ‘punishes a substantial amount of protected speech, judged in
relation to [its] plainly legitimate sweep.’” Opp’n 8 (quoting Virginia v. Hicks, 539 U.S. 113,
118–19 (2003)); see also Mot. Dismiss 8 (articulating a similar standard). Notably, as the
Government points out, Abu Khatallah “makes no effort to show the requisite ‘substantial’
infringement of protected speech” that the material-support statute allegedly imposes. Opp’n 9.
He merely states in conclusory fashion that “the statute is overbroad.” Mot. Dismiss 9. But
“recitation of the applicable legal standards and [a] conclusory declaration that [a law] is
overbroad do not come close to carrying [the] burden” for prevailing in an overbreadth challenge
under the First Amendment. United States v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011).
Because Abu Khatallah has “failed to describe any situation in which even an insubstantial
amount of speech may be restrained because of § 2339A[] and cites no case law in which this
statute . . . has been found overbroad,” United States v. Awan, 459 F. Supp. 2d 167, 180
(E.D.N.Y. 2006), aff’d, 384 F. App’x 9 (2d Cir. 2010), the Court rejects his facial challenge.
2. Abu Khatallah’s As-Applied Challenge
As to the statute’s overbreadth “as applied” to him, Abu Khatallah complains that “the
government seeks convictions based on [his] beliefs and communications.” Mot. Dismiss 9.
This complaint is unfounded. First, the Indictment refers to Abu Khatallah’s beliefs and views
41
about the American presence in Benghazi for evidentiary reasons: “to demonstrate, among other
things, his motive and intent,” Opp’n 11; see also Mot. Dismiss 9 (acknowledging that the
Government “provided as evidence . . . the beliefs [Abu Khatallah] held and the messages he
communicated”). Evidence that Abu Khatallah “viewed U.S. intelligence actions in Benghazi as
illegal,” Indictment, Count One ¶ 20(a), for instance, could support the Government’s theory
about the object of the conspiracy with which Abu Khatallah is charged, see id. ¶ 19. Because
the “First Amendment . . . does not prohibit the evidentiary use of speech . . . to prove motive or
intent,” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993), the Government is on firm ground in
mentioning Abu Khatallah’s beliefs and his expression of those beliefs. Second, even a cursory
review of the Indictment makes clear that the Government seeks to convict Abu Khatallah under
§ 2339A based not on protected speech, but on unquestionably unprotected criminal conduct.
See, e.g., Indictment, Count One ¶ 20(e) (alleging that Abu Khatallah “actively participat[ed] in
the attack on the Mission by coordinating the efforts of his conspirators and turning away first
responders”).
Thus, to the extent “that the government seeks convictions based on Mr. Abu Khatallah’s
[alleged] beliefs and communications,” Mot. Dismiss 9, those beliefs and communications either
provide evidence “of his motive for soliciting and procuring illegal attacks against the United
States,” United States v. Rahman, 189 F.3d 88, 118 (2d Cir. 1999), or constitute “speech integral
to criminal conduct,” United States v. Stevens, 559 U.S. 460, 468 (2010). In either case, the
First Amendment places no bar on the prosecution of Abu Khatallah under § 2339A. The Court
therefore rejects Abu Khatallah’s as-applied First Amendment challenge to the material-support
statute.
42
C. Motion To Dismiss Counts Ten Through Fifteen on the Ground that the
Mission and Annex Were Neither “Federal Facilities” nor “U.S. Property”
Finally, Abu Khatallah moves to dismiss counts Ten through Fifteen of the Indictment,
which, as noted above, charge him with offenses related to attacking a “federal facility” in
violation of 18 U.S.C. § 930(c) (Counts Ten through Thirteen) and damaging “U.S. Property” in
violation of 18 U.S.C. § 844(f) (Counts Fourteen and Fifteen). He argues that the Mission and
Annex were neither “federal facilities” nor “U.S. Property” for purposes of those statutes
because they were not lawfully owned or leased under certain treaties requiring consent of the
host State to establish diplomatic posts. The Government counters that it is entitled to present
evidence at trial as to each element of the offenses charged—and therefore that Abu Khatallah’s
argument is premature and unsuited to a motion to dismiss an indictment—and that it would be
inappropriate to “import the terms of an international treaty to amend clearly worded statutory
definitions in U.S. criminal statutes.” Govt.’s Opp’n Def.’s Mot. Dismiss, ECF No. 99
(“Opp’n”) 6. Because the treaties Abu Khatallah cites do not apply to the Mission or Annex, the
Court will deny his motion to dismiss these counts.
1. Statutory Background
Section 930(c) prohibits “kill[ing] any person . . . in the course of an attack on a Federal
facility involving the use of a firearm or other dangerous weapon [and] attempt[ing] or
conspir[ing] to do such an act.” 18 U.S.C. § 930(c). Section 930(g)(1) defines “Federal
facility” as “a building or part thereof owned or leased by the Federal Government, where
Federal employees are regularly present for the purpose of performing their official duties.” 18
U.S.C. § 930(g)(1).
Section 844(f) prohibits “maliciously damag[ing] or destroy[ing], or attempt[ing] [to do
so], by means of fire or an explosive, any building, vehicle, or other personal or real property in
43
whole or in part owned or possessed by, or leased to, the United States, or any department or
agency thereof.” 18 U.S.C. § 844(f)(1). Subsection (f)(3) provides for the death penalty or a
sentence of twenty years to life for any person who “directly or proximately causes the death of
any person” while engaging in conduct prohibited by subsection (f).
2. The Parties’ Arguments
Abu Khatallah begins his argument with the observation that the “common-sense
meaning” of the statutes at issue “presumes that the government acts within the larger legal
framework established by Congress, abiding by treaties it has enacted.” Def.’s Mot. Dismiss,
ECF No. 90 (“Mot. Dismiss”) 6. The governing treaties here, he contends, are the Vienna
Convention on Consular Relations and Optional Protocol on Disputes and the Vienna
Convention on Diplomatic Relations and Optional Protocol on Disputes (the “Vienna
Conventions”), which “require mutual consent between States to establish diplomatic relations
and missions,” id. at 4 (citing Vienna Convention on Consular Relations and Optional Protocol
on Disputes art. 2, Apr. 24, 1963, 21 U.S.T. 77; Vienna Convention on Diplomatic Relations and
Optional Protocol on Disputes art. 2, Apr. 18, 1961, 23 U.S.T. 3227). 5 Abu Khatallah maintains
that because the United States never sought such consent from the TNC to establish the Mission
or Annex, the Mission and Annex were not lawfully possessed, leased, or owned by the United
States, and therefore did not constitute federal facilities or U.S. property under § 930(g) and
§ 844(f).
The Government counters that these statutes should not be read to incorporate treaty
5
Abu Khatallah finds support for his reading of the Vienna Conventions in the State
Department’s Foreign Affairs Manual. See Mot. Dismiss 4–5 (“When a decision to open a post
has been reached, the acceptance of the foreign government is necessary and must precede any
public disclosure of the proposed action.” (quoting 2 Foreign Affairs Manual § 422.1-1,
http://www.state.gov/documents/organization/210051.pdf)).
44
requirements found nowhere in the statutory text because “federal crimes . . . are solely the
creatures of statute,” and Congress is entrusted with designating elements of federal criminal
offenses. Opp’n 7 (quoting Staples v. United States, 511 U.S. 600, 604 (1994)). The
Government also makes two alternative arguments: first, that even if treaties can inform
interpretation of the statutes, the Vienna Conventions are not in play here because they pertain
only to facilities the Government seeks to have recognized as permanent diplomatic or consular
facilities, and second, that Abu Khatallah’s argument is an inappropriate basis for a motion to
dismiss because the indictment is legally sufficient and the Government is entitled to an
opportunity to prove all elements of the offenses charged at trial.
3. Applicability of the Vienna Conventions
As multilateral treaties, the Vienna Conventions “are contracts between sovereigns,
[which] should be construed to give effect to the intent of the signatories.” Gonzalez Paredes v.
Vila, 479 F. Supp. 2d 187, 191 (D.D.C. 2007) (quoting Tabion v. Mufti, 73 F.3d 535, 537 (4th
Cir. 1996)) (internal quotation mark omitted). Courts discern signatories’ intent “in accordance
with the ordinary meaning to be given to the terms of the treaty in their context and in light of
[the treaty’s] object and purpose.” Id. (quoting Logan v. Dupuis, 990 F. Supp. 26, 29 (D.D.C.
1997)) (citing Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155
U.N.T.S. 331).
Even if the Government is incorrect that criminal laws are “creatures of statute” that
should not be read in light of international law, see Murray v. Schooner Charming Betsy, 6 U.S.
(2 Cranch) 62 (1804) (“[A]n act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains.”), the Court sees no tension between the two
in this case. Application of the statutes at issue to the Mission and Annex does not violate the
45
Vienna Conventions because those conventions do not bear on what constitutes a federal facility
under § 930(g)(1) or U.S. property under § 844(f)(1).
The treaties require mutual consent for the “establishment of consular relations,” Vienna
Convention on Consular Relations and Optional Protocol on Disputes art. 2, Apr. 24, 1963, 21
U.S.T. 77 (emphasis added), and the “establishment of diplomatic relations . . . and of permanent
diplomatic missions,” Vienna Convention on Diplomatic Relations and Optional Protocol
Disputes art. 2, Apr. 18, 1961, 23 U.S.T. 3227 (emphases added). The establishment of consular
or diplomatic relations with a foreign state is distinct from the U.S. Government’s owning or
leasing “a building or part thereof . . . where Federal employees are regularly present for the
purpose of performing their official duties,” 18 U.S.C. § 930(g)(1), or owning, possessing, or
leasing, “in whole or in part,” “any building, vehicle, or other personal or real property,” 18
U.S.C. § 844(f)(1). 6 The U.S. Government could establish a federal facility or own, possess, or
lease U.S. property recognized as such by these statutes irrespective of whether it used the
facility or property in furtherance of diplomatic or consular relations.
Furthermore, the establishment of permanent diplomatic or consular relations is distinct
from the use of nonpermanent locations for temporary diplomatic purposes. See Tachiona ex rel.
Tachiona v. Mugabe, 186 F. Supp. 2d 383, 387 (S.D.N.Y. 2002) (“The genesis and negotiating
history of the Vienna Convention [on Diplomatic Relations] make clear that the purpose the
6
Articles 12 and 23 of the Vienna Convention on Diplomatic Relations, which Abu Khatallah
also cites, see Mot. Dismiss 4, are not to the contrary. Article 12 provides that “[t]he sending
State may not, without the prior express consent of the receiving State, establish offices forming
part of the [diplomatic] mission in localities other than those in which the mission itself is
established.” Vienna Convention on Diplomatic Relations and Optional Protocol Disputes art.
12, Apr. 18, 1961, 23 U.S.T. 3227. To the extent this article applies to the Mission and Annex,
the most it could do would be to call into question their status as parts of the United States’s
diplomatic mission in Libya. It would not affect their status as federal facilities or U.S. property
under U.S. law. Article 23 is even less applicable to the question before the Court as it concerns
diplomatic missions’ exemption from local taxes. See id. art. 23.
46
treaty intended to address was the codification of rules governing diplomatic relations between
sovereign states and the organization and functioning of permanent diplomatic missions in states
with established relations.”). And the indictment and Abu Khatallah’s motion to dismiss make
clear that neither the Mission nor the Annex was intended to be a “permanent diplomatic
mission.” The U.S. Embassy in Libya was located in Tripoli until the State Department
suspended operations and evacuated personnel in February 2011. Mot. Dismiss 1. When the
United States sought to reestablish an American presence in Libya a few months later in April
2011, it sent Special Envoy Stevens to Benghazi, and then set up a “U.S. Special Mission” and
an annex building there in late 2011. Indictment ¶¶ 5–6. Within six months, Stevens had
returned to Tripoli as the U.S. Ambassador to Libya, though he was present, and was killed, in
Benghazi during the attack. Id.
Abu Khatallah himself appears to concede that the Special Mission in Benghazi was
established as a temporary concern: “In December 2011, the State Department approved a one-
year continuation of operations in Benghazi.” Mot. Dismiss 2 (citing State Dep’t Report). And
the State Department report he cites for support describes the Mission’s staffing as “short-term”
and “transitory,” State Dep’t Report 4, noting that the Mission “was never a consulate and never
formally notified to the Libyan government,” id. at 14–15.
The bipartisan Senate intelligence report on the attacks, issued in January 2014, likewise
characterizes the Mission as nonpermanent, using the term “U.S. Temporary Mission Facility.”
U.S. Senate Select Comm. Intelligence, Review of the Terrorist Attacks on U.S. Facilities in
Benghazi, Libya, September 11-12, 2012, at 4 (2014), http://www.intelligence.senate.gov
/sites/default/files/press/benghazi.pdf. And commentators have hypothesized that part of the
reason the attack was so devastating was the mission’s “confusing legal status”: “It wasn’t an
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embassy or even an official consulate; it was so off-book that the Libyan government was never
officially notified of its existence. This put the mission outside the normal State Department
procedures used to allocate security funding and personnel.” Zack Beauchamp, 9 Questions
About Benghazi You Were Too Embarrassed to Ask, Vox (Oct. 12, 2015, 9:00 AM),
http://www.vox.com/2015/10/12/9489389/benghazi-explained. While this account may bolster
Abu Khatallah’s argument that the United State never obtained consent from the TNC to
establish the Mission or Annex, it demonstrates that such consent was not required under the
Vienna Conventions given the transitory nature of the posts.
Moreover, as the Government points out, it would make little sense for a foreign state to
have veto power over the protections these statutes afford federal employees working in federal
facilities. See Opp’n 8. While requiring the host state’s consent to establish diplomatic or
consular relations or permanent diplomatic facilities is consistent with the purposes of diplomacy
and international cooperation, limiting the scope of a U.S. criminal statute designed to protect
federal workers, whether within U.S. boundaries or abroad, subverts Americans’ safety to the
decision of a foreign state.
4. Applicability of the Vienna Conventions
The Government also urges the Court to reject Abu Khatallah’s Vienna Convention
argument because it presents a challenge to the sufficiency of the evidence, which the
Government is entitled to establish at trial. The Government does not explicitly concede that it
did not seek or obtain consent from the TNC to set up or operate the posts, but it also does not
directly refute Abu Khatallah’s claim that it never made the recognized Libyan Government
aware of the locations. It focuses instead on the inapplicability of the treaties.
As discussed above, however, resolution of the questions before the Court does not turn
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on the Mission’s or Annex’s status under the Vienna Conventions. Rather, the Court is able to
determine as a matter of law that, whether or not the United States obtained consent from the
TNC to set up the Mission and Annex, the Vienna Conventions do not bear on those entities’
status as federal facilities or U.S. property. The Court may therefore address Abu Khatallah’s
argument at this stage. See United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (noting
that the D.C. Circuit “has upheld a pretrial dismissal of counts of an indictment based on a
question of law”) (citing United States v. Espy, 145 F.3d 1369, 1370 (D.C. Cir. 1998)).
IV. Conclusion
For the foregoing reasons, the Court will deny Abu Khatallah’s motions to dismiss
Counts One, Two, Four through Fifteen, and Eighteen. It will reserve ruling and order
supplemental briefing on Abu Khatallah’s motion to dismiss Counts Sixteen and Seventeen. A
separate Order accompanies this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: December 23, 2015
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