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United States v. Khatallah

United States District Court, D. Columbia.

December 23, 2015

UNITED STATES OF AMERICA
v.
AHMED SALIM FARAJ ABU KHATALLAH, also known as " Ahmed Abu Khatallah," also known as " Ahmed Mukatallah" also known as " Ahmed Bukatallah" also known as " Sheik," Defendant

          For AHMED SALIM FARAJ ABU KHATALLAH, also known as AHMED MUKATALLAH, also known as AHMED ABU KHATALLAH, also known as AHMED BUKATALLAH, also known as SHEIK, Defendant: Eric Leslie Lewis, Jeffrey D. Robinson, LEAD ATTORNEYS, LEWIS BAACH PLLC, Washington, DC; Mary Manning Petras, Michelle M. Peterson, LEAD ATTORNEYS, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC; Richard Jasper, LEAD ATTORNEY, PRO HAC VICE, New York, NY; Waleed Elsayed Nassar, LEAD ATTORNEY, LEWIS BAACH PLLC, Washington, DC.

         For USA, Plaintiff: David Brian Goodhand, John Crabb, Jr., Julieanne Himelstein, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Appellate Division, Washington, DC; Michael C. DiLorenzo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Opher Shweiki, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; David Joseph Mudd, U.S. ATTORNEY'S OFFICE, WASHINGTON, D.C., Washington, DC.

         MEMORANDUM OPINION

         CHRISTOPHER R. COOPER, United States District Judge.

         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.

         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-securityidUSKBN0ET1KQ20140618#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 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).

         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 the nature of the accusation against him," id. at 148-49 (quoting United States v. Hitt, 249 F.3d 1010, 1016, 346 U.S.App.D.C. 16 (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, 43 S.Ct. 39, 67 L.Ed. 149 (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, 185 L.Ed.2d 671 (2013) (quoting Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2878, 177 L.Ed.2d 535 (2010)). Phrased slightly differently, " there must be present the affirmative intention of the Congress clearly expressed." Id. (quoting Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147, 77 S.Ct. 699, 1 L.Ed.2d 709 (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, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (" Aramco" ). Phrases like " clear indication" and " convincing indication," Small v. United States, 544 U.S. 385, 391, 125 S.Ct. 1752, 161 L.Ed.2d 651 (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.

         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, 69 S.Ct. 575, 93 L.Ed. 680 (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 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 rebutted in certain kinds of cases. Nonetheless, a nearly century-old chestnut of extraterritoriality doctrine--United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (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 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 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.
(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 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, 362 U.S.App.D.C. 512 (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. 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 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 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 ...


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