United States v. Ahmed Salim Faraj Abu Khatallah

• Citation: 151 F.Supp.3d 116
• Decision Date: 23 December 2015
• Docket Number: Case No. 14-cr-00141 (CRC)
• Parties: 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.
• Court: United States District Courts. United States District Court (Columbia)

151 F.Supp.3d 116

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.

Case No. 14-cr-00141 (CRC)

United States District Court, District of Columbia.

Signed December 23, 2015

John Crabb, Jr., Julieanne Himelstein, Michael C. Dilorenzo, Opher Shweiki, U.S. Attorney's Office, Washington, DC, for United States of America.

Eric Leslie Lewis, Jeffrey D. Robinson, Waleed Elsayed Nassar, Lewis Baach PLLC, Mary Manning Petras, Michelle M. Peterson, Federal Public Defender for D.C., Washington, DC, Richard Jasper, New York, NY, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER

, United States District Judge

On September 11 and 12, 2012, a U.S. diplomatic compound in Benghazi, Libya was attacked, resulting in the deaths of four Americans, including United States Ambassador to Libya J. Christopher Stevens. In an eighteen-count superseding indictment, a grand jury charged Defendant Ahmed Salim Faraj Abu Khatallah with orchestrating and participating in the attack. Abu Khatallah has moved to dismiss all but one of the counts. He alleges that most of the statutes he is charged with violating cannot be applied to conduct undertaken outside of the United States, that one of them is unconstitutionally vague and overbroad, and that the two facilities destroyed in the attack do not meet the applicable statutory definitions of “federal facilities” or “U.S. property.” For the reasons discussed below, the Court will deny the motions as to all but two of the counts challenged. The Court will, by separate order, request supplemental briefing with respect to those counts.

I. Factual and Procedural Background

During the civil war that erupted in Libya in early 2011, the rebel group seeking to overthrow Muammar Gaddafi, the Transitional National Council (“TNC”), established its base of operations in the city of Benghazi. 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. Less than two months later, the State Department reestablished its presence in the country through the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens. According to the State Department's official report on the Benghazi attack, on June 21, 2011, Stevens moved into what would become a U.S. Special Mission compound. See Accountability Review Bd., U.S. Dep't of State, Benghazi Attack Report 14 (Unclassified) (2012), http://www.state.gov/documents/organization/202446.pdf (“State Department Report”). The compound was eventually comprised of “a diplomatic outpost, known as the U.S. Special Mission,” where a contingent of U.S. State Department personnel were based, and a second “facility ..., known as the Annex,” where a contingent of other U.S. personnel were based. Indictment ¶¶ 5–6.

The United States officially recognized the TNC as Libya's governing authority the following month, on July 15, 2011, and Gaddafi was ousted from power only a few weeks later. The U.S. Embassy in Tripoli reopened with a temporary-duty staff in September 2011. Stevens continued as Special Envoy to the TNC in Benghazi until he left the country on November 17, 2011. The Special Envoy position was not filled after Stevens's departure, but he returned to Libya as Ambassador in May 2012, operating out of the U.S. Embassy in Tripoli. According to the State Department Report, “2012 saw an overall deterioration of the security environment in Benghazi, as highlighted by a series of security incidents involving the Special Mission, international organizations, non-governmental organizations ..., and third-country nationals and diplomats.” Id. at 15; see also id. at 15–16.

Ambassador Stevens traveled to Benghazi to visit the Mission compound on September 10, 2012. Stationed at the compound and present during the Ambassador's visit were Information Management Officer Sean Patrick Smith; Assistant Regional Security Officer Scott Wickland; Assistant Regional Officer David Ubben; Security Officers Tyrone Snowden Woods and Glen Anthony Doherty; and a Security Officer the Indictment refers to only as “Mark G.” See Indictment ¶ 16; State Dep't Report 18.

The Mission and Annex were attacked on September 11 and 12, 2012. In two phases beginning on the evening of September 11 and lasting into the morning of September 12, armed intruders deployed small-arms and machine-gun fire, rocket-propelled grenades, and mortars at both facilities. See State Dep't Report 4. Buildings on the compound burned, and the fire spread to the Mission building housing Ambassador Stevens during his stay. Ambassador Stevens, Smith, Woods, and Doherty were killed in the attacks.

On July 15, 2013, a criminal complaint and arrest warrant issued for Abu Khatallah, whom the Department of Justice suspected of conspiring to commit and participating in the attack. Just under one year later, on June 16, 2014, a team of U.S. special military forces captured Abu Khatallah south of Benghazi. He was then transported to the United States aboard a Navy ship, the USS New York. According to news sources, Libya condemned the capture, calling for Abu Khatallah's return to Libya for trial. See Ulf Laessing & Ahmed Elumami, Libya Condemns U.S. Arrest of Benghazi Suspect, Demands His Return , Reuters (June 18, 2014, 10:11 AM), http://www.reuters.com/article/2014/06/18/us-libya-securityidUSKBN0ET1KQ20140618#TGChTGE0utFtJmxL.97.

A grand jury sitting in Washington, D.C. issued an initial indictment against Abu Khatallah within two weeks, and a superseding indictment approximately four months later, on October 14, 2014. The Superseding Indictment (“Indictment”) identifies the Defendant as Ahmed Salim Faraj Abu Khatallah, also known as Ahmed Abu Khatallah, Ahmed Mukatallah, Ahmed Bukatallah, and “Sheik,” and describes him as having been “the commander of Ubaydah Bin Jarrah ..., an Islamist extremist militia in Benghazi, which had the goal of establishing Sharia law in Libya,” until that group merged in 2011 with Ansar al-Sharia, “another Islamist extremist group in Libya with the same goal,” and Abu Khatallah became the new group's “Benghazi-based leader.” Indictment ¶ 9. The Indictment notes that Abu Khatallah's first entry into the United States was in the District of Columbia. Id.

The eighteen-count Indictment charges Abu Khatallah with providing and conspiring to provide material support to terrorists, resulting in death, under 18 U.S.C. § 2339A

(Counts One and Two); murder of an internationally protected person under 18 U.S.C. §§ 1116 and 1111 (Count Three); three counts of murder of an officer and employee of the United States under 18 U.S.C. §§ 1114 and 1111 (Counts Four through Six); three counts of attempted murder of an officer and employee of the United States under 18 U.S.C. §§ 1114 and 1113 (Counts Seven through Nine); four counts of killing a person in the course of an attack on a federal facility involving use of a firearm and a dangerous weapon under 18 U.S.C. §§ 930(c) and 1111 (Counts Ten through Thirteen); two counts of maliciously damaging and destroying U.S. property by means of fire and an explosive, causing death, under 18 U.S.C. § 844(f)(1) and (3) (Counts Fourteen and Fifteen); two counts of maliciously destroying and injuring dwellings and property and placing lives in jeopardy within the special maritime and territorial jurisdiction of the United States under 18 U.S.C. §§ 1363 and 7 (Counts Sixteen and Seventeen); and using, carrying, brandishing, and discharging a firearm during a crime of violence under 18 U.S.C. § 924(c) (Count Eighteen).

Abu Khatallah has filed a series of motions to dismiss all but Count Three of the Indictment. He challenges Counts One and Two on the ground that 18 U.S.C. § 2339A

is unconstitutionally vague and overbroad; Counts Four through Eighteen in whole, and One and Two in part, on the ground that the statutes under which he is charged in those counts do not apply extraterritorially; and Counts Ten through Fifteen on the ground that the Mission and Annex were not “federal facilities” under 18 U.S.C. § 930(g)(1) or “U.S. property” under 18 U.S.C. § 844(f). The Court held a hearing on these motions on October 16, 2015, with Abu Khatallah present.

The Court will deny Abu Khatallah's motions as to Counts One and Two, Four through Fifteen, and Eighteen. The Court will reserve ruling on his motion as to Counts Sixteen and Seventeen, and will request supplemental briefing from the parties on certain questions pertinent to those counts by separate order.

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

A. Motion To Dismiss Counts One, Two, and Four Through Eighteen for Lack...