MEMORANDUM OPINION
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Ahmed
Salim Faraj Abu Khatallah was convicted of four charges
related to the 2012 attack on a United States diplomatic
compound in Benghazi, Libya. He has moved for a judgment of
acquittal on one of these offenses: Count Eighteen of the
superseding indictment, which charged a violation of 18
U.S.C. § 924(c). Abu Khatallah claims that his
conviction cannot stand in light of the Supreme Court's
recent decision in Sessions v. Dimaya, 138 S.Ct.
1204 (2018). The Court will deny his motion.
I.
Background
Abu
Khatallah was charged with eighteen offenses related to the
2012 attacks in Benghazi. After a seven-week trial, the jury
convicted him on four of the charges and acquitted him on all
others.[1] One of his convictions was for using or
carrying a semiautomatic assault weapon “during and in
relation to any crime of violence, ” in violation of 18
U.S.C. § 924(c)(1)(A).[2] Section 924(c) defines a
“crime of violence” as any felony that:
(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.
Id § 924(c)(3). Subsection (A) of this
definition is commonly referred to as the “elements
clause” (or sometimes the “force clause”).
Subsection (B) is known as the “residual clause.”
The
jury was not required to specify which offenses it viewed as
crimes of violence supporting Abu Khatallah's §
924(c) conviction. But it convicted him on three counts that,
according to the jury instructions, qualified:
. Count 1: Providing material support to
terrorists (a violation of 18 U.S.C. § 2339A carrying a
maximum 15-year prison sentence);
. Count 2: Conspiring to do the same (also a
violation of 18 U.S.C. § 2339A carrying a maximum
15-year sentence); and .
Count 16: Intentionally injuring a building within the
special and maritime jurisdiction of the United
States-namely, the U.S. Special Mission-where that building
was a dwelling or where the life of a person was placed in
jeopardy (a violation of 18 U.S C. § 1363 carrying a
maximum 20-year sentence)
Abu
Khatallah moved for a judgment of acquittal at the close of
the government's case and again after his case. Trial Tr.
5421, 5537-38 (Nov. 13, 2017 a.m.). The Court reserved
judgment on the motion and submitted the case to the jury on
November 20, 2017. On November 28, the jury convicted Abu
Khatallah on the four charges described above.
He now
renews his motion[3] with respect to his § 924(c)
conviction in light of the Supreme Court's April 2018
decision in Sessions v. Dimaya, 138 S.Ct. 1204.
Dimaya confronted a challenge to a different
provision of the federal criminal code, 18 U.S.C. § 16,
that defines “crime of violence” identically to
§ 924(c). The challengers there argued that the
provision's residual clause was unconstitutionally
vague-that is, it did not provide fair notice of the conduct
it prohibits and thus could not be applied without violating
the Due Process Clause of the Fifth Amendment. Id.
at 1212. The Supreme Court agreed. See id. at 1216.
Abu
Khatallah thus contends that, for the reasons stated by the
Supreme Court in Dimaya, the same residual clause in
§ 924(c) is also void for vagueness. And he claims that,
without the residual clause, his conviction under §
924(c) cannot stand. In his view, while his other convictions
may have qualified as crimes of violence under the residual
clause, none of them fall within the elements clause because
they do not have “as an element the use, attempted use,
or threatened use of physical force against the person or
property of another, ” 18 U.S.C. § 924(c)(3)(A).
II.
Analysis
A.
Abu Khatallah Has Not Waived the Argument that his §
924(c) Conviction Is Invalid
At the
threshold, the government contends that Abu Khatallah waived
any argument that the crimes charged in the indictment are
not crimes of violence for purposes of § 924(c). It
points to two missed opportunities for Abu Khatallah to have
raised this argument, each of which it believes constitutes
waiver.
First,
the government claims that Abu Khatallah should have moved to
dismiss the indictment's § 924(c) count as failing
to charge an offense. See Fed. R. Crim. P.
12(b)(3)(B)(v); United States v. Eshetu, 863 F.3d
946, 952 (D.C. Cir. 2017) (explaining that a challenge to the
constitutionality of a criminal statute “undoubtedly
qualifies” as a proper ground for a motion to dismiss
for failure to charge an offense under Rule 12). This
argument can be quickly dispensed with. While the Federal
Rules of Criminal Procedure do provide for waiver of
arguments not timely raised in pretrial motions, the Rules
allow courts to consider any defense or objection “if
the party shows good cause.” Fed. R. Crim. P. 12(c)(3).
Good cause exists here. The deadline for pretrial motions in
this case lapsed in August 2015. That predated
Dimaya by two-and-a-half years. The government
suggests that the Supreme Court decision on which
Dimaya relied- Johnson v. United States,
135 S.Ct. 2551 (2015)-provided Abu Khatallah with a basis for
challenging his § 924(c) charge before trial. Maybe so
in the abstract. But Johnson dealt with statutory
text different from § 924(c)'s and, under binding
D.C. Circuit case law at the time, § 924(c)'s
residual clause was constitutionally sound. See,
e.g., United States v. Kennedy, 133 F.3d 53,
56-58 (D.C. Cir. 1998) (applying residual clause). Abu
Khatallah's argument to the contrary would have almost
certainly fallen on deaf ears, and thus good cause exists for
his failure to raise that argument. Fed. R. Crim. P. 12
advisory committee note to 2014 amendments (describing good
cause as “a flexible standard that requires
consideration of all interests in the particular
case”).
Alternatively,
the government claims that Abu Khatallah waived his
“crime of violence” argument by not objecting to
the jury instruction that “[t]he crimes charged in
Counts One through Seventeen are crimes of violence.”
The Court disagrees that this constituted waiver. The Court
delivered jury instructions (1) shortly after the D.C.
Circuit had reaffirmed the constitutionality of §
924(c)'s residual clause following the Supreme
Court's decision in Johnson, see
Eshetu, 863 F.3d at 955, and (2) before the Supreme
Court in Dimaya called that ruling into question.
Abu Khatallah could not have credibly argued that the jury
instruction misstated current law, and surely his failure to
raise an argument anticipating the Supreme Court's
decision to change the law does not waive an argument relying
on that change. Rather, Abu Khatallah correctly conceded that
the charged crimes qualified as crimes of violence under ...