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United States v. Khatallah

United States District Court, District of Columbia

March 2, 2016

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.

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER United States District Judge

On December 23, 2015, the Court denied Defendant Ahmed Abu Khatallah’s motion to dismiss Counts One and Two, Four through Fifteen, and Eighteen of the Superseding Indictment. See United States v. Abu Khatallah, No. 14-cr-00141, 2015 WL 9451032 (Dec. 23, 2015). The Court reserved ruling on his motion to dismiss Counts Sixteen and Seventeen for lack of extraterritorial jurisdiction. Those counts charge Abu Khatallah with maliciously destroying and injuring dwellings and property and placing lives in jeopardy within the special maritime and territorial jurisdiction of the United States (“SMTJ”) under 18 U.S.C. § 1363, the statute criminalizing those actions, and 18 U.S.C. § 7, the statute defining the SMTJ.

The Court reserved judgment on Counts Sixteen and Seventeen in order to satisfy itself whether Abu Khatallah’s conduct, as alleged by the government, took place within the SMTJ, a question not fully addressed in the parties’ briefing. The Court thus ordered supplemental briefing on the following questions “with respect to the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 7”:

(1) Does 18 U.S.C. § 7(3) apply only to lands reserved or acquired by the United States domestically or does it encompass lands reserved or acquired by the United States abroad?
(2) If the government proves that Abu Khatallah “did willfully and maliciously destroy and injure and attempt to destroy and injure a structure, conveyance, and other real and personal property, . . . and place[] the lives of United States nationals in danger, ” Indictment Count Seventeen ¶ 2, will the government have proved that Abu Khatallah committed an offense “against a national of the United States” within 18 U.S.C. § 7(9)?

Order of December 23, 2015, ECF No. 139. The parties submitted briefing on these questions in January 2016. Because, as discussed below, the Court concludes that 18 U.S.C. § 7(9) affords it jurisdiction over Counts Sixteen and Seventeen of the Superseding Indictment, it need not address the parties’ arguments in response to the first question above, regarding 18 U.S.C. § 7(3).

I. Legal Standards

Title 18 of the U.S. Code, Section 1363, criminalizes maliciously destroying or injuring property within the SMTJ, and provides that, if “the life of any person be placed in jeopardy” in the course of doing so, a lengthier sentence applies:

Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously destroys or injures any structure, conveyance, or other real or personal property, or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than five years, or both, and if the building be a dwelling, or the life of any person be placed in jeopardy, shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1363. Title 18, section 7(9) provides, in relevant part, that “[w]ith respect to offenses committed by or against a national of the United States, ” the following locations fall within the SMTJ:

(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

18 U.S.C. § 7(9) (emphasis added). Section 7(9), therefore, brings within the ambit of the SMTJ premises of U.S. missions and entities abroad and residences used for purposes thereof, so long as the relevant offense is committed by or against a U.S. national.

The second question in the Court’s supplemental-briefing order sought to address whether Counts Sixteen and Seventeen of the Superseding Indictment-in charging Abu Khatallah with violations of § 1363-in effect charge him with committing offenses “against a national of the United States” within the meaning of § 7(9). In other words, if the government proves that Abu Khatallah maliciously destroyed or injured property as alleged in the Superseding Indictment, and in so doing, “placed the lives of United States nationals in danger, ” Indictment Count Seventeen ¶ 2, will it have proved that he committed an offense against a U.S. national? ...


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