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United States v. Khatallah

United States District Court, District of Columbia

June 26, 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

         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 ...


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