United States v. Abukhatallah
| Decision Date | 26 July 2022 |
| Docket Number | 18-3041,C/w 18-3054 |
| Citation | 41 F.4th 608 |
| Parties | UNITED STATES of America, Appellee v. Ahmed Salimfaraj Abukhatallah, also known as Ahmed Mukatallah, also known as Ahmed Abu KHATALLAH, also known as Ahmed Bukatallah, also known as Sheik, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Julia Fong Sheketoff, Assistant Federal Public Defender, argued the cause for appellant/cross-appellee. With her on the briefs was A. J. Kramer, Federal Public Defender. Mary M. Petras, Assistant Federal Public Defender, entered an appearance.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee/cross-appellant. With him on the briefs were Elizabeth Trosman, Assistant U.S. Attorney at the time the brief was filed, and Elizabeth H. Danello and John Crabb Jr., Assistant U.S. Attorneys. Chrisellen R. Kolb, Assistant U.S. Attorney, entered an appearance.
Before: Millett, Katsas, and Rao, Circuit Judges.
Ahmed Abu Khatallah ("Khatallah") was convicted on several counts related to his involvement in the September 11, 2012, terrorist attack on the United States’ diplomatic outpost in Benghazi, Libya. He was sentenced to 22 years of imprisonment and five years of supervised release. He now appeals his convictions under several theories, seeking acquittal or at least a new trial. The government has cross-appealed, arguing the district court's 22-year sentence is substantively unreasonably low. We hold for the government. Khatallah has failed to show that he was convicted on legally insufficient evidence, that he was prejudiced by any erroneous evidentiary rulings or jury instructions, or that he was substantially prejudiced by the prosecution's closing arguments. On the other hand, Khatallah's sentence is substantively unreasonably low in light of the gravity of his crimes of terrorism. The district court's decision to disregard conduct for which Khatallah was acquitted cannot account for its dramatic downward departure from the Sentencing Guidelines’ recommendation. We therefore reverse his sentence and remand for resentencing.
In 2011, after the fall of Muammar Gaddafi's regime, the United States established a diplomatic outpost, the United States Special Mission ("the Mission"), in the city of Benghazi "to maintain a diplomatic relationship with those in eastern Libya and to support the people of Libya in rebuilding their war-torn country." Government's Supplemental Appendix ("S.A.") 84. "The Mission was typically occupied by a small contingent of [State Department] personnel and members of a local guard force, who were employed by [the State Department]." S.A. 84. The CIA also established a covert facility ("the Annex") about a mile away. During the events relevant here, the U.S. Ambassador to Libya, J. Christopher Stevens, was temporarily staying at the Mission.
On the night of September 11, 2012, dozens of terrorists assaulted the Mission under cover of darkness. Around 9:45 p.m., the heavily armed militants assembled and forced their way through the Mission's main gate. They opened fire on the American and allied security personnel stationed there. They bashed and poured gasoline on Mission vehicles. And the militants set fire to the "Villa," the main residential facility in the Mission, which was occupied by Ambassador Stevens and Sean Patrick Smith, a State Department Foreign Service officer. After initially seeking refuge in a safe room, both men died from smoke inhalation while trying to escape the Villa. U.S. and allied forces counterattacked, and by around 10:15 p.m., this first wave of the attack had been repulsed.
The second wave began around 11:15 p.m., when the militants returned to the Mission at another gate and attacked the American allies still on the premises using AK-47s and rocket-propelled grenades. The remaining Americans on site quickly evacuated the facility and made a perilous drive to the Annex. The militants gained entry around 11:45 p.m. and ransacked the Mission, lighting vehicles on fire and taking sensitive information from the Mission's Tactical Operations Center. Their work at the Mission done, the militants attacked the Annex around 12:30 a.m. on September 12 and then retreated after two violent skirmishes. Around 5:15 a.m., they resumed their attack with mortar fire that killed two more Americans, security officers Tyrone Woods and Glen Doherty, and injured two others. U.S. reinforcements eventually arrived and evacuated the U.S. personnel in the Annex to safety in Tripoli.
Ambassador Stevens’ death shocked the American public. As the district court remarked at sentencing, "it was the first time in 40 years that a United States ambassador had been killed in the line of duty." Sentencing Tr. 50 (June 27, 2018). In response, the U.S. government deployed substantial resources to find and punish those responsible. These efforts led to Khatallah's 2014 capture.
Khatallah is a 51-year-old Benghazi native. He was imprisoned by the Gaddafi regime—allegedly for his religious beliefs. At some point after his release from custody, Khatallah became the leader of "Ubaydah Bin Jarrah" ("UBJ"), an Islamist militia active in the Benghazi area. UBJ was one of many local "brigades" that formed a coalition against the Gaddafi regime in the Libyan Civil War but afterward continued to operate independently of the recognized successor government. Testimony at trial linked UBJ to Ansar al-Sharia, a notorious Al-Qaeda affiliated organization whose camp served as a base of operations for the Benghazi attack.1
Khatallah was captured pursuant to a joint operation among multiple U.S. agencies. The government principally relied on the cooperation of Ali Majrisi, a wealthy Benghazi-based businessman who befriended Khatallah at the United States’ urging.2 Majrisi approached Khatallah with an offer of financing and convinced him to go to a purported "safe house" on the coast. In fact, U.S. forces were waiting to arrest Khatallah. He was subdued and disarmed upon entering the building, and U.S. forces loaded him onto a Navy vessel for transport to the United States. American officials also interrogated Khatallah about the attack en route.
Khatallah was indicted on 18 counts. Count 1 was for "conspiracy to provide material support and resources to terrorists resulting in death." Appellant's Appendix ("App.") 2–8; see 18 U.S.C. § 2339A. Count 2 was for "providing material support and resources to terrorists resulting in death." App. 8–9; see 18 U.S.C. § 2339A. Counts 3–15 were for the murders, attempted murders, and killings by fire or explosives of Ambassador Stevens and the three other Americans. App. 9–17. Counts 16 and 17 were for "maliciously destroying and injuring dwellings and property and placing lives in jeopardy within the special maritime and territorial jurisdiction of the United States and attempting to do the same" in violation of 18 U.S.C. § 1363. App. 17–18; see 18 U.S.C. § 7 (). Count 16 was for the destruction of the Mission buildings and property, while Count 17 was for the damage to the Annex. And Count 18 was for "using, carrying, brandishing, and discharging a firearm during a crime of violence" in violation of 18 U.S.C. § 924(c). App. 18–19.
At trial, after presenting testimony about the nature of the attack and the deaths of the four Americans, the government presented a series of witnesses to tie Khatallah to the attack on the Mission. See United States v. Khatallah ("Khatallah IV "), 313 F. Supp. 3d 176, 182–85 (D.D.C. 2018) ().
First, the government called Khalid Abdullah, a Libyan army commander. He claimed Khatallah told him he resented the presence of American intelligence personnel in the country and that he was planning to attack the consulate. Although Abdullah was a part of the U.S.-friendly army, he testified that Khatallah warned him not to interfere with the attack and asked for military equipment and vehicles. Khatallah IV , 313 F. Supp. 3d at 182–83.
Second, the government called Bilal al-Ubydi, who grew up with Khatallah and was a local leader of the militia groups friendly to the United States. Khatallah IV , 313 F. Supp. 3d at 183. Al-Ubydi testified that Khatallah was UBJ's commander and religious leader. While viewing surveillance footage in court, al-Ubydi identified several people carrying assault rifles during the first wave of the attack as UBJ members and close associates of Khatallah. Al-Ubydi further testified that Khatallah called him around 10:15 p.m. the night of the attack and told him—in a manner al-Ubydi perceived as hostile and threatening—to "pull back" a group of guards stationed near the Mission. Trial Tr. 2533 (Oct. 18, 2017, AM). Finally, in Mission surveillance footage timestamped 11:55 p.m., al-Ubydi identified Khatallah as a figure holding an assault rifle and surrounded by other attackers including the local commander of Ansar al-Sharia.
Third, the government called the agents who captured Khatallah and interrogated him on his way to the United States. Khatallah IV , 313 F. Supp. 3d at 184. They testified that during the interrogation, Khatallah identified people from the surveillance footage of the Benghazi attack. According to one of the agents, Khatallah also admitted to manning a roadblock and turning away U.S.-friendly forces, to driving to the compound after the attack began with a gun, and to entering a Mission building.
Finally, the government called Ali Majrisi, the local businessman who helped capture Khatallah. He testified that Khatallah knew he was suspected of involvement in the attack and that Khatallah expressed disappointment that more Americans had not been killed. Khatallah IV , 313 F. Supp. 3d at 183. Majrisi also testified that Khatallah essentially admitted involvement in the attack by referring...
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