United States District Court, D. Columbia.
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,
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.,
R. COOPER, United States District Judge.
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.
Factual and Procedural Background
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),
(" 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.
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.
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.
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.
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),
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.
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)
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.
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
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.
Motion To Dismiss Counts One, Two, and Four Through Eighteen
for Lack of Extraterritoriality
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
Generally Applicable Principles of
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).
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
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
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.
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)).
Harmonizing the Apparent Civil/Criminal Divide
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.
The Facts and Holding of United States v. Bowman
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.
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.
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."
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."
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
(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."
(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
(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."
(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
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.
The D.C. Circuit's Application of Bowman: United
States v. Delgado-Garcia
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
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.
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)).
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)). 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.
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, 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.
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. 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.
Abu Khatallah's Statutory Challenges
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 ...