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United States v. Abu Khatallah

United States District Court, District of Columbia

June 15, 2018

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

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

         Following a seven-week jury trial, defendant Ahmed Salim Faraj Abu Khatallah was convicted of four offenses and acquitted of 14 others related to the September 2012 attack on a United States diplomatic compound in Benghazi, Libya. He now moves for a mistrial based on alleged improper statements and argument by government counsel during trial. Finding that most of the challenged conduct fell within the bounds of appropriate advocacy, and that the improprieties that did occur had no meaningful effect on the outcome of the trial, the Court will deny the motion.

         I. Background

         On September 11 and 12, 2012, two United States government facilities in Benghazi, Libya were attacked, resulting in the deaths of four Americans, including U.S. Ambassador J. Christopher Stevens. The attack began on the evening of September 11 when a group of armed intruders breached the U.S. Special Mission, where a contingent of State Department personnel worked. The attack continued at a second facility, known as the “Annex, ” which housed U.S. intelligence personnel. The attackers used small arms, machine guns, and rocket-propelled grenades at both facilities, and fired mortars to barrage the Annex. Fires set by the attackers on the Mission grounds spread to Ambassador Stevens' living quarters, and he and State Department IT specialist Sean Patrick Smith died of smoke inhalation while trapped there. Two State Department security officers, Tyrone Woods and Glen Doherty, were killed by mortar fire at the Annex. Three other U.S. government personnel were injured.

         In an eighteen-count superseding indictment, a grand jury in this Court charged Abu Khatallah with planning and participating in the attacks. The charges included destruction of U.S. government property at both the Mission and the Annex and the murders and attempted murders of seven U.S. government employees.[1] The government alleged that Abu Khatallah, as a leader of an extremist militia called Ubaydah Bin Jarrah (“UBJ”), directed the attack on the Mission and Annex because he hated America-a hatred stoked by his objection to the United States' intelligence presence in Benghazi.

         Following extensive pretrial proceedings, the trial began on October 2, 2017. The Court will attempt to recount enough of the evidence to contextualize the jury's verdict and the challenges raised in the defendant's motion. The government's evidence can generally be categorized as follows: (1) eye-witness testimony from surviving victims and other U.S. government personnel regarding the attack itself; (2) identification testimony from the deceased victims' relatives and expert testimony regarding cause of death; (3) testimony from cooperating Libyan witnesses connecting Abu Khatallah to the attack; (4) video and phone record evidence of Abu Khatallah's involvement in the attack and links to other perpetrators; and (5) testimony from FBI agents and officials involved in Abu Khatallah's capture in Libya, mainly concerning his post-capture statements to the agents.

         The government set the stage of its case-in-chief with testimony from witnesses who survived the attack on the Mission and Annex, including State Department security personnel and CIA security contractors stationed at the Annex. These witnesses recounted their harrowing experiences, and their combined testimony created a timeline of how the attack unfolded. They also described and, in one instance, briefly displayed their injuries to the jury. The government also elicited identification testimony from relatives of those who died during the attack. These witnesses identified photographs of the victims and briefly testified about their relationships with them. The Court sustained several defense objections to this evidence and attempted to limit it to relevant identifying testimony and photographs. See, e.g., Trial Tr. 2135:7-9 (Oct. 16, 2017 AM) (sustaining objection to question about whether victim “enjoyed” being a Navy SEAL and instructing government counsel to “move on”); Trial Tr. 911-13 (Oct. 3, 2017 PM) (prohibiting the government from showing photographs of Ambassador Stevens that predated his tenure as Ambassador).

         The government next called several cooperating Libyan witnesses.[2] The first, Khalid Abdullah, is a commander of a Libyan army unit that was active in Benghazi around the time of the attack. In a pretrial video deposition that was shown to the jury, Abdullah testified that, prior to the attack, Abu Khatallah had publically denounced the American intelligence presence in Libya. July 28, 2017 Sealed Deposition of Khalid Abdullah at 19-20. Abdullah also testified that the defendant told him he wanted to attack the American consulate and asked him for the use of military vehicles about a week before the attack. Id. at 24-25. Finally, he testified that Abu Khatallah signaled that he did not want Abdullah's men interfering during the attack. Id. at 26.

         The government then called Bilal al-Ubydi, who supervised a group of security brigades that worked under the authority of the post-Gaddafi Libyan government. Al-Ubydi grew up in the same Benghazi neighborhood as Abu Khatallah and linked him to other purported members of UBJ who were seen participating in the attack in the video footage from the Mission. See, e.g., Trial Tr. 2401-28; 2435-47 (Oct. 17, 2017 PM). He was on duty the night of the attack at a base near the Mission and testified about a telephone conversation he had with Abu Khatallah in which the defendant asked him to withdraw members of his brigade who were trying to repel the attackers on the complex. Trial Tr. 2533:5 (Oct. 18, 2017 AM). Al-Ubydi also described seeing Abu Khatallah and several other men loading weapons from the base where he worked onto a pickup truck days prior to the attack. Trial Tr. 2471-72 (Oct. 17, 2017 PM); Trial Tr. 2515-16 (Oct. 18, 2017 AM).

         Finally, the government called Ali Majrisi, a Benghazi businessman recruited by the United States government to help capture Abu Khatallah. Among other things, Ali Majrisi testified that, in the days following the attack, Abu Khatallah addressed a meeting in a mosque and acknowledged that he had been accused of being responsible. Trial Tr. 4993 (Nov. 6, 2017 PM). He also recounted a conversation with several mutual acquaintances in which Abu Khatallah boasted that he had intended to kill more Americans in the attack. Trial Tr. 4995:5-7 (Nov. 6, 2017 PM).

         On cross-examination of the Libyan witnesses, the defense sought to undermine their credibility and draw out potential ulterior motives for their testimony. For instance, the defense emphasized Khalid Abdullah's personal and political animus against Abu Khatallah. See July 28, 2017 Sealed Deposition of Khalid Abdullah. It also highlighted financial incentives the witnesses might have to give testimony favorable to the government: Ali Majrisi was paid over seven million dollars in reward money for his role in helping capture Abu Khatallah, and al-Ubydi also received substantial government compensation for his cooperation in the case. See, e.g., Trial Tr. 5187-88 (Nov. 7, 2017 PM).

         Third, the government presented non-testimonial evidence of Abu Khatallah's involvement in the attack and connection to other perpetrators. This evidence included several hours of surveillance video footage from the Mission compound during the attack. The video showed armed men that other witnesses linked to UBJ in general and to Abu Khatallah in particular pouring gasoline, setting fires, and entering buildings on the Mission grounds. Other footage shot after the Mission attack had subsided showed a man resembling the defendant-and who several witnesses identified as him-entering and leaving a building on the compound armed with an AK-47-style rifle. Gov. Ex. 301, clip #36 at 11:54; clip # 38 at 12:02. The government also introduced records associated with a cell phone number that other witnesses linked to Abu Khatallah.[3] The records demonstrated that before and during the attack, Abu Khatallah was communicating with other alleged members of UBJ who were seen participating in the attack in the video footage.

         Finally, the government elicited testimony from the FBI agents who were involved in Abu Khatallah's capture in Libya. The agents described the capture operation and recounted their interrogations of the defendant during his transportation to the United States aboard a military ship. According to the agents, Abu Khatallah identified people on the surveillance footage from the night of the attack. They also testified that while Abu Khatallah did not confess to participating in the attack, he did admit to driving to the compound after the attack, armed with a gun, and entering a building there. See, e.g., Trial Tr. 3905-06 (Oct. 30, 2017 AM, testimony of Michael Clarke). In addition to the FBI agents who questioned Abu Khatallah, the government called the language specialist who interpreted the questioning and the ship's doctor. Trial Tr. 4302 (Oct. 31, 2017 PM). On cross-examination, the defense stressed that the interrogations were not recorded, which it later argued cast doubt on the veracity and accuracy of the agents' notes and testimony about the interrogation. Trial Tr. 4349-50 (Oct. 31, 2017 PM).

         The defense presented a relatively limited case. Its first witness was Ahmed Salem, a Benghazi resident who testified that Abu Khatallah was at his house the evening of September 11 and, upon receiving a phone call about the attack, appeared surprised to learn that there was a U.S. government facility in Benghazi. Trial Tr. 5423-5498 (Nov. 13, 2017 AM). The second defense witness was Abdul Basit Igtet, an entrepreneur (and erstwhile Libyan Presidential candidate) who testified that Abu Khatallah told him that he was willing to meet with U.S. government officials regarding the attack, thus showing a lack of consciousness of guilt. Trial Tr. 5505 (Nov. 13, 2017 AM). The defense also recalled FBI Special Agent Michael Clarke, who had interviewed the government's cooperating witness, Bilal al-Ubydi, in an effort to impeach several aspects of al-Ubydi's testimony on direct examination. Trial Tr. 5580 (Nov. 13, 2017 PM).

         Along with these witnesses, the defense introduced a series of written stipulations that were read in open court and provided to each juror to consult during deliberations. Trial Tr. 5852-64 (Nov. 15, 2017 PM). Most of the stipulations described information in the government's possession concerning other possible perpetrators of the attack and thus supported the defense's theory that people other than Abu Khatallah were actually responsible for it. The stipulations were derived from classified summaries of intelligence information, which were produced to the defense in discovery pursuant to the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3. Prior to their introduction, the stipulations underwent a lengthy negotiation process. The parties agreed to their language and, with input from the Court, arrived at a preamble that explained to the jury that the stipulations were summaries of classified information concerning the attacks that the U.S. government had received from various intelligence sources. The preamble also explained that because the defense only had summaries of the classified information, and not the underlying classified information itself, it did not know the original source of the information and thus could not call the source to testify.

         Other stipulations introduced by the defense provided background information about the government's cooperating witnesses and their financial compensation. A final stipulation stated that the cell phone associated with the phone records that were in evidence “was located in the vicinity of [Abu Khatallah's] residence, ” over three miles away from the Mission and Annex, during an eight-hour time period that encompassed the attack on the Annex. Trial Tr. 5859:8-12 (Nov. 15, 2017 PM).

         After both sides rested and the Court read the jury instructions, the government delivered a relatively straightforward closing argument summarizing the prosecution's evidence-although the argument did include certain references to facts not in evidence, as explained further below. The defense then delivered its closing argument. The crux of the defense's summation was innocent presence: Abu Khatallah was unaware that the United States had a diplomatic facility in Benghazi until he received a telephone call the night of the attack, and then went to the Mission just “to see what was going on” and entered the compound only after the attack had ended. Trial Tr. 6133-34 (Nov. 16, 2017 PM). Addressing the government's evidence that Abu Khatallah planned and participated in the attack, the defense mainly attacked the credibility of the government's cooperating witnesses by pointing out apparent inconsistencies in their testimony, highlighting areas of potential bias, and emphasizing the financial benefits they received for their cooperation. It also challenged the authenticity and provenance of the cell phone records and the quality of the Mission surveillance video. On the latter score, defense counsel suggested that the man witnesses identified as the defendant holding an AK-47 was in fact not the defendant. The defense also drew the jury's attention to the stipulations describing the role of other groups in the attacks, which counsel argued created reasonable doubt by themselves.

         Apart from the purported weakness of the government's evidence, an overarching theme of the defense's closing was that the government was attempting to compensate for its evidentiary shortcomings by appealing to the jury's emotions. Defense counsel cited a number of instances of this supposed ploy, including government counsel (identified by name) referring to the Mission and Ambassador as “ours” and the government's extended focus on the victims' experiences and injuries, neither of which the defense disputed. Near the end of her argument, counsel predicted that the same prosecutor (again, by name) “will be very impassioned in her pleas” during rebuttal argument and thus urged the jury to “make sure what you're listening to is evidence as opposed to appeals to your sympathies.” Trial Tr. 6134:6-10 (Nov. 16, 2017 PM). Defense counsel's final words echoed the point: “Don't make your decisions based on anything other than the evidence that is presented to you. That's how you honor the brave Americans that lost their lives.” Trial Tr. 6134:19-21 (Nov. 16, 2017 PM).

         The prosecutor's rebuttal more than delivered on the defense's prediction. Responding to the suggestion that she had used the term “our” to engender patriotic sympathy, counsel doubled down at the outset:

I cannot tell you how proud I am to represent the United States of America and how honored I am to call the United States Mission in Benghazi ours. Yes, it is ours. And . . . Ambassador Stevens is our son. And brave American Sean Smith is an American son. And Glenn Dougherty and Tyrone Woods, Navy Seals, are our American sons.
And I cannot tell you how proud I am. And yes, they are ours. And the Consulate and the other United States facility, the CIA Annex, that's ours too. And I will take that to the bank, and I will take full responsibility for saying that that is ours.

         Trial Tr. 6134:25-6135:11 (Nov. 16, 2017 PM).

         She then responded to the main theory of the defense: “Ladies and gentlemen, there's no innocent presence here. The defendant is guilty as sin. And he is a stone cold terrorist.” Trial Tr. 6135:12-14 (Nov. 16, 2017 PM). And referencing the defense's suggestion in closing that the government had lavished unnecessary benefits on Bilal al-Ubydi, counsel gestured in the direction of defense counsel and asked rhetorically “How dare you say that?” Trial Tr. 6140:10 (Nov. 16, 2017 PM). Later, in an apparent attempt to minimize the significance of the negotiated stipulations, counsel referred to them as “words on a piece of paper, ” in contrast to witnesses “who you can see.” Trial Tr. 6150:22-25 (Nov. 16, 2017 PM).

         The defense objected at several stages of the rebuttal. The Court overruled or reserved on the objections, choosing instead to hold a bench conference at the conclusion of the argument to enable the defense to lodge all of its objections on the record and to suggest what curative instructions might be in order. At the bench, the defense moved for a mistrial, but asked the Court to reserve on the motion pending jury deliberations. The Court then reminded the jury of its prior instruction that “the arguments of counsel and statements of counsel . . . are not evidence in the case.” Trial Tr. 6158:18-20 (Nov. 16, 2017). The Court continued: “It's been a long eight weeks, but it is up to you to determine what's in evidence and disregard arguments of counsel as evidence. Is that clear?” Trial Tr. 6158-59 (Nov. 16, 2017 PM).

         And before submitting the case to the jury, the Court drew the jurors' attention to the prosecutor's characterization of the stipulations:

You heard [government counsel] refer to the stipulations. These were agreements that were negotiated between the defense and the government very carefully. And in assessing the meaning of the stipulation[s], I would advise you to read them carefully . . . and to take them as they are written. No more, no less.

Trial Tr. 6159:4-9 (Nov. 16, 2017 PM).

         The jury received the case on November 20, 2017. After five days of deliberation, it convicted Abu Khatallah on four of the 18 counts: (1) conspiracy to provide material support to terrorists in violation of 18 U.S.C. § 2339A; (2) providing material support to terrorists in violation of 18 U.S.C. § 2339A;[4] (3) maliciously destroying property at the Mission in violation of 18 U.S.C. § 1363; and (4) using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). With respect to the two material support counts, the jury made special findings that the defendant's conduct did not “result in death.” And with respect to the 924(c) count, the jury made special findings that the defendant used or carried a semi-automatic rifle but that he did not “brandish” or “discharge” it. The jury also found he did not use or carry a “destructive device.” The jury acquitted on of all charges related to the murder and ...


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