United States v. Ayesh

• Decision Date: 18 December 2012
• Docket Number: No. 11–4266.,11–4266.
• Citation: 702 F.3d 162
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Osama Esam Saleem AYESH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

702 F.3d 162

UNITED STATES of America, Plaintiff–Appellee,

v.Osama Esam Saleem AYESH, Defendant–Appellant.

No. 11–4266.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 20, 2012.

Decided: Dec. 18, 2012.

ARGUED:Alan Hideto Yamamoto, Alexandria, Virginia, for Appellant. Ellen Ruth Meltzer, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia; Lanny A. Breuer, Assistant Attorney General, Criminal Division, Greg D. Andres, Acting Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C., for Appellee.

Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and MAX O. COGBURN, JR., United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge COGBURN wrote the opinion, in which Chief Judge TRAXLER and Judge DAVIS joined.

OPINION

COGBURN, District Judge:

Appellant Osama Esam Saleem Ayesh (“Ayesh”) appeals from a criminal judgment entered following a jury trial in the United States District Court for the Eastern District of Virginia. Ayesh was convicted by a jury on two counts of theft of public money (Counts 1 and 2), violations of 18 U.S.C. § 641, and on one count of committing acts affecting a personal financial interest (Count 3), a violation of 18 U.S.C. § 208(a). The District Court sentenced Ayesh to concurrent terms of imprisonment of 42 months on each count, followed by three years of supervised release. The District Court also ordered Ayesh to pay a fine of $5,000 and restitution of $243,416. On appeal, Ayesh contends that the district court improperly exercised extraterritorial jurisdiction over him for the counts of conviction, that it incorrectly denied his Motion to Suppress his post-arrest statements, and that the evidence was insufficient to sustain Ayesh's convictions for theft of public money. Finding no error, we affirm the district court.

I.

A.

On appeal, we consider the facts presented at trial in a light most favorable to the government, as the prevailing party at trial. United States v. Jefferson, 674 F.3d 332, 341 n. 14 (4th Cir.2012). Ayesh, a resident of Amman, Jordan, was hired by the U.S. Department of State to work as the shipping and customs supervisor at the U.S. Embassy in Baghdad, Iraq. While there, Ayesh devised a scheme to divert United States funds intended for shipping and customs clearance vendors to his wife's bank account in Jordan. As part of his scheme, Ayesh established a phony email account, obtained a blank invoice from a legitimate vendor, altered the document, and submitted fraudulent invoices and wire transfers in the name of the vendor. In addition, Ayesh also obtained self-inking signature stamps for the legitimate vendor, and kept all such instrumentalities in his living quarters, which were located on the grounds of the U.S. Embassy in Baghdad.

When U.S. officials suspected Ayesh's wrongdoing, they arranged for him to come to the United States under the pretext of attending a training seminar. Upon his arrival at Dulles International Airport, in Chantilly, Virginia, Ayesh was arrested and questioned by agents of the Federal Bureau of Investigation (the “FBI”) and the U.S. Department of State (the “DOS”). After about five hours of questioning, Ayesh confessed.

B.

On October 15, 2010, a grand jury returned a three-count indictment against Ayesh, charging him in two counts with theft of public money, in violation of 18 U.S.C. § 641, and in one count with committing acts affecting a personal financial interest, in contravention of 18 U.S.C. § 208(a). The district court denied Ayesh's motions to dismiss for lack of jurisdiction, and to suppress his post-arrest statements. On February 2, 2011, a jury convicted Ayesh on all counts.

II.

On appeal, Ayesh presents three contentions of error. First, Ayesh contends that the district court improperly exercised extraterritorial jurisdiction over him for violations of 18 U.S.C. §§ 208(a) and 641 occurring in Baghdad, Iraq. Second, he contends that the district court incorrectly denied his motion to suppress his post-arrest statements made to agents of the FBI and DOS upon his arrival at Dulles. Third, Ayesh contends that there was insufficient evidence to sustain his convictions for theft of public money. We address each contention in turn.

A.

In his first contention, Ayesh argues that the district court lacked extraterritorial jurisdiction over him for acts that occurred outside the United States. Whether the district court had subject matter jurisdiction is a question of law subject to de novo review. United States v. Barton, 26 F.3d 490, 491 (4th Cir.1994).

“Congress has the authority to apply its laws, including criminal statutes, beyond the territorial boundaries of the United States.” United States v. Dawn, 129 F.3d 878, 882 (7th Cir.1997). See also United States v. Bowman, 260 U.S. 94, 97–98, 43 S.Ct. 39, 67 L.Ed. 149 (1922). Whether Congress has exercised that authority is a matter of statutory construction and, generally, statutes enacted by Congress, including criminal statutes, apply only within the territorial jurisdiction of the United States. EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991).

The Supreme Court in Bowman held that if Congress intends for overseas crimes “against private individuals or their property ... which affect the peace and good order of the community,” to be punished in this country, “it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.” Bowman, 260 U.S. at 98, 43 S.Ct. 39. But that is not the end of the analysis. The Court went on to say that “the same rule of interpretation” should not be applied to criminal statutes that are “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, especially if committed by its own citizens, officers, or agents.” Id. (emphasis added). In such cases, congressional intent may be “inferred from the nature of the offense.” Id. The Court added that to apply such a statute only territorially would “[g]reatly ... 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.

Clearly, as with the statute in Bowman criminalizing fraud against a corporation in which the United States is a stockholder, congressional intent to exercise overseas jurisdiction can be inferred from the nature of the offenses criminalized by 18 U.S.C. §§ 208(a) and 641. Otherwise, government employees, contractors, or agents like Ayesh—be they United States citizens or foreign nationals—would be at liberty to pilfer public money or engage in acts of self-dealing with impunity so long as they did so abroad. Thus, we find that the district court's exercise of extraterritorial jurisdiction was consistent with Congress's intent that 18 U.S.C. §§ 208(a) and 641 be applied abroad.

We further find that extraterritorial application of these statutes comported with international law. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch.) 64, 118, 2 L.Ed. 208 (1804) (“an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”). The district court's exercise of jurisdiction is supported by the protective principle of international law, which “permits a nation to assert subject matter criminal jurisdiction over a person whose conduct outside the nation's territory threatens the national interest.” United States v. Alomia–Riascos, 825 F.2d 769, 771 (4th Cir.1987). Extraterritorial jurisdiction was also appropriate under the territorial principle, which permits jurisdiction “over all acts which take effect within the sovereign even though the author is elsewhere.” Rivard v. United States, 375 F.2d 882, 886 (5th Cir.1967) (citing Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927)). Both statutes criminalize conduct that has effects within the United States and threatens the operation of this nation's governmental functions.

Finally, the district court's exercise of extraterritorial jurisdiction comported with due process. See United States v. Brehm, 691 F.3d 547, 552 (4th Cir.2012). As the district court noted, Ayesh's “employment with the Department of State at the United States Embassy in Baghdad was central to the commission of his alleged crimes.” J.A. 1384. Moreover, Ayesh lived on the embassy compound, and was provided with a copy of the Foreign Service National Handbook, which advised him that he was subject to the laws and regulations of the United States. Id. at 687, 693–94. 698.

Thus, despite the fact that Ayesh is a foreign national and all of the acts occurred in Jordan and Iraq, the district court properly exercised extraterritorial jurisdiction over him. Finding no error in the district court's denial of Ayesh's motion to dismiss, we affirm.

B.

In his second contention, Ayesh argues that the district court incorrectly denied his motion to suppress his post-arrest statements to FBI and DOS agents. In reviewing a district court's ruling on a motion to suppress, this Court reviews the lower court's factual findings for clear error and its legal conclusions de novo. United States v. Richardson, 607 F.3d 357, 369 (4th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 427, 178 L.Ed.2d 324 (2010). Because the district court denied the motion, this Court construes the evidence in the light most favorable to the government. United States v. Black, 525 F.3d 359, 364 (4th Cir.2008).

1.

Ayesh argues here, as he did below, that because he made the statements during a lengthy interview after traveling from Jordan for 19...