United States v. Alahmedalabdaloklah

• Docket Number: 18-10435
• Decision Date: 09 August 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AHMED ALAHMEDALABDALOKLAH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AHMED ALAHMEDALABDALOKLAH, Defendant-Appellant.

No. 18-10435

United States Court of Appeals, Ninth Circuit

August 9, 2023

Argued and Submitted February 6, 2023 Phoenix, Arizona

Amended February 28, 2024

Appeal from the United States District Court for the District of ArizonaRoslyn O. Silver, District Judge, Presiding D.C.No 2:12-cr-01263- ROS-1

Molly A. Karlin(argued), Assistant Federal Public Defender; Jon M Sands, Federal Public Defender; Federal Public Defender's Office, Phoenix, Arizona; Michael Tanaka, Law Office of Michael Tanaka, Los Angeles, California; for Defendant-Appellant.

Jeffrey M. Smith(argued), Appellate Counsel; Matthew G. Olsen, Assistant Attorney General for National Security; Gary M. Restaino, United States Attorney; National Security Division, United States Department of Justice, Washington, D.C.; David A. Pimsner and Bill C. Solomon, Assistant United States Attorneys; Krissa M. Lanham, Appellate Division Chief; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

Samuel Macomber, Federal Defender Services of Idaho, Boise, Idaho, for Amici Curiae Ninth Circuit Public and Community Defenders.

Aamra Ahmad, American Civil Liberties Union Foundation, Washington, D.C.; Sara Robinson, Patrick Toomey, Ashley Gorski, and Molly Kovel, American Civil Liberties Union Foundation, New Y ork, New Y ork; Jared Keenan, American Civil Liberties Union Foundation of Arizona; for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Arizona.

Before: Susan P. Graber, Richard R. Clifton, and Morgan Christen, Circuit Judges.

SUMMARY^[**]

Criminal Law

The panel affirmed in part and reversed in part the conviction, after a jury trial, of Ahmed Alahmedalabdaloklah(Oklah), a Syrian national, for participating in a conspiracy that targeted U.S. military personnel and property in Iraq.

Reversing in part, the panel agreed with the parties that Oklah's convictions on Counts Three and Four, for conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same, could not stand after the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319(2019).On those counts, the panel remanded with direction to the district court to vacate the convictions.

The panel affirmed Oklah's convictions on Counts One and Two, for conspiring to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a, and conspiring to damage U.S. Government property by means of an explosive, in violation of 18 U.S.C. § 844(f) and (n).

As to Count Two, the panel held that 18 U.S.C. § 844(f) and (n) applied to Oklah's extraterritorial conduct.The panel held that the presumption against extraterritoriality applies to criminal statutes as well as to civil statutes.Reconciling United States v. Bowman,260 U.S. 94(1922)(whether a criminal statute has extraterritorial reach depends on the nature of the criminalized conduct and the interests the statute protects), with Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247(2010), andRJR Nabisco, Inc. v. European Cmty., 579 U.S. 325(2016)(setting forth a two-step test for determining whether a statute applies extraterritorially), the panel held that a criminal statute applies extraterritorially when (1) a federal criminal offense directly harms the U.S. Government, and (2) enough foreseeable overseas applications existed at the time of the statute's enactment to warrant the inference that Congress both contemplated and authorized prosecutions for extraterritorial acts.The panel concluded that the text and context of § 844(f) and (n) provide a clear indication that they apply extraterritorially, including to Oklah, a foreign national.Accordingly, the presumption against extraterritoriality was rebutted.

The panel held that, during pretrial discovery, the district court properly exercised its discretion in granting the Government's motions to use the processes set forth in the Classified Information Procedures Act (CIPA) to withhold or "substitute" classified information from discovery.As recognized by Oklah, precedent foreclosed his argument that his constitutional rights were violated because he and his counsel were not present at several CIPA hearings and because his counsel was prohibited from sharing or discussing certain "Secret"-level documents with him.Having placed itself in defense counsels' shoes and examined the classified records in full, the panel concluded that the district court did not abuse its discretion in its CIPA rulings, and the panel confirmed that the withheld classified materials were either not discoverable, or were not relevant and helpful to Oklah's defense.The panel held that the district court also did not abuse its discretion by authorizing the Government to turn over substitution statements to the defense in lieu of other discovery.

The panel concluded, however, that several of the Government's supporting declarations were insufficient to sustain its invocation of the state-secrets privilege because this privilege requires formal invocation, either by the head of the department that has control over the matter or by a minister who is the political head of the department.The panel excused the Government's failure to comply with the formal invocation requirement in this case because it would be of little or no benefit to remand for the purpose of having the department head agree that the disclosure of the classified information would pose a risk to national security.

The panel held that the use at trial of the overseas deposition testimony of Jamal Al-Dhari about Oklah's connection to the Iraqi Revolution Brigades did not violate Oklah's rights under the Confrontation Clause; the Supreme Court's rulings in Brady v. Maryland, 373 U.S. 83(1963), Giglio v. United States, 405 U.S. 150(1972), andNapue v. Illinois, 360 U.S. 264(1959); or the rule against the admission of hearsay evidence.

The panel held that the district court properly excluded, as hearsay, emails between FBI Special Agent Whitson and Al-Dhari.

The panel held that the district court properly admitted the testimony of Christopher Graham and refused to grant a mistrial or to strike Graham's expert testimony on the Government's physical evidence.

The panel held that the Government's failure to produce James Dempsey, a Department of Defense-affiliated witness, at trial did not violate Oklah's constitutional rights to due and compulsory process.

The panel held that the district court's refusal to order the Government to search the entire Department of Defense for relevant documents was not error under Brady, which requires the Government to produce to the defense exculpatory or impeaching evidence in the prosecutor's possession.

The panel held that remand for resentencing was warranted because the parties agreed that the convictions on Counts Three and Four must be vacated, but the panel rejected Oklah's argument that the case should be reassigned to a different district judge on remand.

AMENDED OPINION^[*]

CHRISTEN, CIRCUIT JUDGE

Ahmed Alahmedalabdaloklah(Oklah), a Syrian national, appeals his conviction after a jury trial for participating in a conspiracy that targeted U.S. military personnel and property in Iraq.^[1] The Government alleged that Oklah applied his technical expertise to develop, manufacture, and supply electronic components for improvised explosive devices (IEDs) that a non-state militant group used against the U.S. military.The Government's evidence included videotaped testimony from overseas depositions; emails exchanged among alleged co-conspirators; physical evidence collected from a facility apparently used to assemble electronic components and manufacture IEDs in Baghdad, including physical evidence bearing the defendant's fingerprints; and expert testimony from electrical engineers with specialized military training.The jury delivered a mixed verdict on the six-count indictment.It convicted Oklah for conspiring to use a weapon of mass destruction (Count One), conspiring to damage U.S. government property (Count Two), and conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same (Counts Three and Four).The jury acquitted Oklah of conspiring to murder Americans (Count Five) and providing material support to terrorists (Count Six).

We agree with the parties that the convictions based on crime-of-violence conspiracy (Counts Three and Four) cannot stand after the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319(2019), and on those counts we remand with direction to the district court to vacate the convictions.Even reviewing the record cumulatively, this is the only error that warrants remand.This opinion addresses Oklah's remaining convictions for Counts One and Two: conspiracy to use a weapon of mass destruction and conspiracy to damage or destroy U.S. government property.We affirm the convictions on Counts One and Two, reverse the convictions on Counts Three and Four, and remand to the district court for resentencing.^[2]

Background

I.Arrest and Extradition

The Government alleged that, between January 2005 and July 2010 Oklah was conspired with the 1920s Revolution Brigades, an insurgent group in Iraq that aimed to drive American military forces out of that country.Among other things, the Brigades allegedly planted IEDs that damaged property owned by the U.S. military and killed or injured American troops.According to the indictment, Oklah designed or created remote detonator switches for the IEDs.The Government presented extensive evidence that Oklah's fingerprints, personal identification...