United States v. Al-Imam

Decision Date14 March 2019
Docket NumberCase No. 17-cr-213 (CRC)
Citation373 F.Supp.3d 247
Parties UNITED STATES of America, v. Mustafa Muhammad Mufta AL-IMAM, Defendant.
CourtU.S. District Court — District of Columbia

Opher Shweiki, U.S. Attorney's Office Violent Crimes & Narcotics Trafficking Section, Washington, DC, for United States of America.

Matthew J. Peed, Clinton Brook & Peed, Washington, DC, for 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...

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