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United States v. Al-Imam

United States District Court, District of Columbia

March 14, 2019

UNITED STATES OF AMERICA,
v.
MUSTAFA MUHAMMAD MUFTA AL-IMAM, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

         On September 11 and 12, 2012, a group of Libyan militants attacked U.S. diplomatic and intelligence facilities in Benghazi, Libya. Four Americans died in the attacks, including then-United States Ambassador to Libya J. Christopher Stevens. The United States alleges, in a seventeen-count superseding indictment, that Defendant Mustafa Muhammad Mufta Al-Imam participated in the attacks. Al-Imam has moved to dismiss all but one of the counts. He contends that most of the statutes under which he is charged do not apply to conduct undertaken outside of the United States; that he cannot be prosecuted for eleven of the counts because his capture violated international law; and that six counts must be dismissed because the offenses charged apply only to legally operated federal facilities, which he says excludes the facilities here.

         Save for the illegal capture argument, the Court has previously considered and rejected each of Al-Imam's challenges in ruling on a motion to dismiss brought by one of his purported co-conspirators, Ahmed Abu Khatallah, who was convicted in November 2017 of three of the offenses with which Al-Imam is also charged. See Judgment, United States v. Ahmed Abu Khatallah, 14-cr-141, ECF No. 547. Recognizing this obstacle to dismissal, Al-Imam urges the Court to reconsider its prior analysis, particularly with respect to his extraterritorial challenge. But the Court finds no reason to depart from its conclusion in Abu Khatallah. It also finds Al-Imam's capture argument unavailing. Accordingly, and for the reasons that follow, the Court will deny Al-Imam's motion to dismiss with respect to all counts.

         I. Background

         Muammar Gaddafi seized power in Libya in 1969 and remained its leader until 2011, when a civil war broke out. Indictment ¶ 2. The war erupted in the Libyan coastal city of Benghazi, which was controlled by rebels and served as the base of operations for the rebel-led Transitional National Council (“TNC”). Id. 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. Id. ¶ 3. Less than two months later, in April 2011, the State Department reestablished its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens. Id. ¶ 4.

         On July 15, 2011, the United States officially recognized the TNC as Libya's governing authority. Id. One month later, Gaddafi was ousted from power and killed. Id. In November 2011, the United States established a diplomatic outpost in Benghazi, known as the U.S. Special Mission (“Mission”), where a contingent of State Department personnel were stationed. Id. ¶ 5. The United States established a second Benghazi facility, this one known as the Annex, where additional U.S. personnel were based. Id. ¶ 6.

         In May 2012, the United States dispatched Stevens, now the U.S. Ambassador to Libya, to the Libyan capital of Tripoli. Id. ¶ 7. Ambassador Stevens traveled to Benghazi to visit the Mission compound on September 10, 2012. Id. Stationed at the compound and present during the Ambassador's visit were Information Management Officer Sean Patrick Smith; Assistant Regional Security Officers Scott Wickland and David Ubben; and Security Officers Tyrone Snowden Woods, Glen Anthony Doherty, and Mark Geist. See id. ¶¶ 13-18.

         Around 9:45 p.m. on September 11, 2012, approximately twenty men-armed with assault rifles, handguns, and rocket-propelled grenade launchers-attacked the Mission. Id. ¶ 22. After breaching the facility, the attackers set fire to several buildings, causing the deaths of Ambassador Stevens and Sean Smith. Id. The remaining State Department personnel escaped to the Annex, which soon also came under attack, ending in mortar fire that killed Tyrone Woods and Glen Doherty. Id.

         Al-Imam was captured in Libya on or about October 29, 2017, during an operation by U.S. armed forces personnel. He was thereafter transported to the District of Columbia to stand trial. A federal grand jury on October 25, 2018 returned a seventeen-count superseding indictment. According to the indictment, the Mission and Annex attacks were carried out, at least in part, by members of the extremist group Ubaydah Ibn Al Jarrah (“UBJ”), whose commander was Abu Khatallah. Indictment ¶ 9. The government alleges that Al-Imam was a close associate of Abu Khatallah and was present for, helped orchestrate, and participated in the attacks. Id. ¶¶ 9-11. According to the indictment, Al-Imam entered the Mission at the direction of Abu Khatallah and took sensitive material, including material that identified the Annex by location and as the evacuation point for Department of State personnel. Id. ¶ 22; Opposition Mot. Dismiss (“Opp.”) at 3. Al-Imam then assembled with Abu Khatallah and others to coordinate the attack on the Annex. Id.

         The specific charges against Al-Imam are as follows: Count One - Conspiracy to Provide Material Support and Resources to Terrorists Resulting in Death, in violation of 18 U.S.C. § 2339A; Count Two - Providing Material Support and Resources to Terrorists Resulting in Death, in violation of 18 U.S.C. §§ 2339A and 2; Count Three - Killing of an Internationally Protected Person (Ambassador Stevens), in violation of 18 U.S.C. §§ 1116, 1111 and 2; Counts Four through Six - three counts of Killing Officers and Employees of the United States (Smith, Woods, and Doherty), in violation of 18 U.S.C. §§ 1114, 1111 and 2; Counts Seven through Nine - two counts of Attempting to Kill Officers and Employees of the United States (Wickland, Ubben, and Geist), in violation of 18 U.S.C. §§ 1114, 1113 and 2; Counts Ten through Thirteen - four counts (one for each victim) of Killing a Person in the Course of an Attack on a Federal Facility Involving the Use of a Firearm or a Dangerous Weapon, in violation of 18 U.S.C. §§ 930(c), 1111 and 2; Counts Fourteen and Fifteen - two counts (one for each facility attacked) of Maliciously Damaging and Destroying U.S. Property by Means of Fire and an Explosive Causing Death, in violation of 18 U.S.C. §§ 844(f)(1) and (3) and 2; and Counts Sixteen and Seventeen - two counts (one for each facility attacked) of Willfully and Maliciously Destroying Property within the Special Maritime and Territorial Jurisdiction of the United States and Placing Lives in Jeopardy, in violation of 18 U.S.C. §§ 1363, 7 and 2.

         Al-Imam moves to dismiss all but one count, arguing that most of the statutes under which he is charged do not apply extraterritorially, that his capture violated international law such that prosecution on some of the counts is precluded, and that the Mission and Annex facilities were not legally-operated federal facilities and thus fall outside the protection of federal law. The government opposes Al-Imam's motion. The Court held a hearing on the motion on February 15, 2019, and the issues are now ripe for the Court's resolution.

         II. Legal Standard

         A 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 (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.

         III. Analysis

         The Court begins with Al-Imam's contention that the federal laws he stands charged with violating do not apply extraterritorially, first recounting its analysis of the arguments in Abu Khatallah, which the parties repeat here, before moving to Al-Imam's critique that the Court's prior reasoning went astray. The Court will then tackle Al-Imam's arguments that his capture precludes the prosecution of certain counts, and that the purportedly unlawful operation of the Benghazi facilities bars the prosecution of other counts.

         A. The Extraterritoriality of the Offenses Charged in Counts 1-2 and 4-17[1]

         Al-Imam advances extraterritoriality arguments identical to those considered and rejected by this Court in Abu Khatallah. Compare MTD at 11-25 with Mot. Dismiss for Lack of Extraterritorial Jurisdiction (ECF No. 91) at 4-21, United States v. Abu Khatallah, 14-cr-141. The government, for its part, responds just as it did in Abu Khatallah. Compare Opp. at 20-34 with Opp. Mot. Dismiss for Lack of Extraterritorial Jurisdiction, ECF No. 101, at 7-24, United States v. Abu Khatallah, 14-cr-141. Indeed, as both parties acknowledge, their submissions on these Counts are near-verbatim reproductions of the submissions in Abu Khatallah.[2] Therefore, the Court reproduces its Abu Khatallah analysis here, though modified to address Al-Imam rather than Abu Khatallah and to exclude arguments appearing in Abu Khatallah's reply memorandum that Al-Imam does not advance here. 151 F.Supp.3d at 123-38; United States v. Abu Khatallah, 168 F.Supp.3d 210, 214 (D.D.C. 2016) (addressing § 1363 counts after supplemental briefing).

         1. Generally Applicable Principles of Extraterritoriality

         The 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 (2013) (quoting Morrison v. Nat'l Australia Bank Ltd., 130 S.Ct. 2869, 2878 (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 (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 (1991) (“Aramco”). Phrases like “clear indication” and “convincing indication, ” Small v. United States, 544 U.S. 385, 391 (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).

         The 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 n.8.

         Aside 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 2877-78.

         So 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 (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.

         The 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)).

         2. Harmonizing the Apparent Civil/Criminal Divide

         As 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 (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. at 1664.

         a. The Facts and Holding of United States v. Bowman

         The 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.

         The 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.

         But a 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.” Id.

         The 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.” Id.

         Bowman 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 commission.” Id.
(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.” Id.
(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 seas.” Id.
(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.” Id.
(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 100.

         In sum, 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 Al-Imam's extraterritoriality challenges.

         b. The D.C. Circuit's Application of Bowman: United States v. Delgado-Garcia

         Along 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 contrary.

         The defendants in United States v. Delgado-Garcia, 374 F.3d 1337, 1339 (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.

         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)).

         The 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)).[3] 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.

         Delgado-Garcia 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, [4]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.

         In this 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.[5] 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.” Opp. Mot. Dismiss (“Opp.”), ECF No. 53, at 20. 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 Al-Imam's individual statutory challenges.

         3. Al-Imam's Statutory Challenges

         Al-Imam contends that five of the statutes under which he is charged do not apply extraterritorially.

         a. 18 U.S.C. § 1114: Murder and Attempted Murder of Officers and Employees of the United States

         Counts Four through Six charge Al-Imam with murder in violation of 18 U.S.C. § 1114; counts Seven through Nine charge him with attempted murder in violation of § 1114. That statute reads, in full:

Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished-
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section ...

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