United States v. Khatallah

• Decision Date: 02 March 2016
• Docket Number: Case No. 14-cr-00141 (CRC)
• Citation: 168 F.Supp.3d 210
• 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: U.S. District Court — District of Columbia

168 F.Supp.3d 210

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 March 2, 2016

David Brian Goodhand, John Crabb, Jr., Julieanne Himelstein, Michael C. Dilorenzo, Opher Shweiki, David Joseph Mudd, 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 the District of Columbia, Washington, DC, Richard Jasper, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER

, United States District Judge

On December 23, 2015, the Court denied Defendant Ahmed Abu Khatallah's motion to dismiss Counts One and Two, Four through Fifteen, and Eighteen of the Superseding Indictment. See United States v. Abu Khatallah, No. 14–cr–00141, 151 F.Supp.3d 116, 2015 WL 9451032 (Dec. 23, 2015)

. The Court reserved ruling on his motion to dismiss Counts Sixteen and Seventeen for lack of extraterritorial jurisdiction. Those counts charge Abu Khatallah with maliciously destroying and injuring dwellings and property and placing lives in jeopardy within the special maritime and territorial jurisdiction of the United States (“SMTJ”) under 18 U.S.C. § 1363, the statute criminalizing those actions, and 18 U.S.C. § 7, the statute defining the SMTJ.

The Court reserved judgment on Counts Sixteen and Seventeen in order to satisfy itself whether Abu Khatallah's conduct, as alleged by the government, took place within the SMTJ, a question not fully addressed in the parties' briefing. The Court thus ordered supplemental briefing on the following questions “with respect to the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 7

”:

(1) Does 18 U.S.C. § 7(3)

apply only to lands reserved or acquired by the United States domestically or does it encompass lands reserved or acquired by the United States abroad?

(2) If the government proves that Abu Khatallah “did willfully and maliciously destroy and injure and attempt to destroy and injure a structure, conveyance, and other real and personal property, ... and place[ ] the lives of United States nationals in danger,” Indictment Count Seventeen ¶ 2, will the government have proved that Abu Khatallah committed an offense “against a national of the United States” within 18 U.S.C. § 7(9) ?

Order of December 23, 2015, ECF No. 139. The parties submitted briefing on these questions in January 2016. Because, as discussed below, the Court concludes that 18 U.S.C. § 7(9)

affords it jurisdiction over Counts Sixteen and Seventeen of the Superseding Indictment, it need not address the parties' arguments in response to the first question above, regarding 18 U.S.C. § 7(3).

I. Legal Standards

Title 18 of the U.S. Code, Section 1363

, criminalizes maliciously destroying or injuring property within the SMTJ, and provides that, if “the life of any person be placed in jeopardy” in the course of doing so, a lengthier sentence applies:

Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously destroys or injures any structure, conveyance, or other real or personal property, or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than five years, or both, and if the building be a dwelling, or the life of any person be placed in jeopardy, shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1363

. Title 18, section 7(9) provides, in relevant part, that “[w]ith respect to offenses committed by or against a national of the United States ,” the following locations fall within the SMTJ:

(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

18 U.S.C. § 7(9)

(emphasis added). Section 7(9), therefore, brings within the ambit of the SMTJ premises of U.S. missions and entities abroad and residences used for purposes thereof, so long as the relevant offense is committed by or against a U.S. national.

The second question in the Court's supplemental-briefing order sought to address whether Counts Sixteen and Seventeen of the Superseding Indictment—in charging Abu Khatallah with violations of § 1363—in effect charge him with committing offenses “against a national of the United States” within the meaning of § 7(9)

. In other words, if the government proves that Abu Khatallah maliciously destroyed or injured property as alleged in the Superseding Indictment, and in so doing, “placed the lives of United States nationals in danger,” Indictment Count Seventeen ¶ 2, will it have proved that he committed an offense against a U.S. national? The purpose of this inquiry is to determine whether the conduct at issue, as the government alleges it, occurred within the SMTJ, a requirement for prosecution under § 1363.

II. Analysis

Congress defined two distinct crimes in 18 U.S.C. § 1363

. The first entails “willfully and maliciously destroy[ing] or injur[ing] any structure, conveyance, or other real or personal property, or attempt[ing] or conspir[ing] to do such an act” within the SMTJ. A person who commits that crime may be imprisoned for up to five years. The second involves the same conduct where the targeted “building [is] a dwelling” or where the act results in “the life of any person be[ing] placed in jeopardy.” A person who commits that crime may be imprisoned for up to twenty years.

Abu Khatallah disagrees with this analysis of the statute. As he sees it, “[t]he enhanced penalty for injury to any dwellings or placing lives in jeopardy ‘does not create two separate crimes.’ ” Def.'s Suppl. Brief 10 (quoting Holiday v. Johnston, 313 U.S. 342, 349, 313 U.S. 550, 349, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941)

). Rather, § 1363 defines a single “property crime concerned with ‘buildings or property within special maritime and territorial jurisdiction.’ ” Id. at 2. This position is untenable, however, in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

. There, the Court held that any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict” is an “element” that must be submitted to a jury and proved beyond a reasonable doubt. Id. at 494, 120 S.Ct. 2348. The endangerment of a person's life is a “fact that, by law, increases the penalty” under § 1363, and is therefore “an ‘element’ [of a crime] that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). The government recognizes as much. Govt.'s Suppl. Br. 7. The crime with which Abu Khatallah is charged, therefore, has the following elements: 1) willfully and maliciously destroying or injuring any structure, conveyance, or other real or personal property, or attempting or conspiring to do such an act, 2) within the SMTJ, 3) where the destroyed or injured building is a dwelling or where the act results in the life of any person being placed in jeopardy.

As a threshold matter, the Court finds that the government is not legally precluded from presenting evidence under 18 U.S.C. § 7(9)

in support of the second element. In other words, to demonstrate that the conduct at issue occurred within the SMTJ, the government may show that, “[w]ith respect to offenses committed by or against a national of the United States,” 18 U.S.C. § 7(9), the Special Mission and Annex constituted “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign states,” id.§ 9(A), or that they were “residences in foreign States,” id.§ 9(B).¹

To prove that the offense was “committed ... against a national of the United States” under § 7(9)

, the government seeks to show, inter alia , that Abu Khatallah “placed the lives of United States nationals in danger” as a result of his conduct. Indictment Count Sixteen ¶ 2; id. Count Seventeen ¶ 2. The question for the Court, then, is whether the crimes charged in Counts Sixteen and Seventeen constitute offenses “committed ... against a national of the United States.” 18 U.S.C. § 7(9). The Court concludes that they do. Where the government seeks to satisfy its burden as to an element of a crime by showing that a person's life was endangered,² and that person is a U.S. national, the offense is necessarily one “committed ... against a national of the United States.” 18 U.S.C. § 7(9). Prosecution under § 1363—for an offense “committed ... against a national of the United States”—is therefore appropriate where the government alleges and seeks to prove that, in the course of maliciously destroying and injuring dwellings and property within the SMTJ, a defendant placed the lives of U.S. nationals in danger.

Abu Khatallah's objections on this point are unavailing. In his view, he has not been charged with committing a crime against a U.S. national—or any person, for that matter—because § 1363

simply defines “a property crime ..., committed only if there has been damage, or the intent to damage, a building,” and which has the “unambiguous statutory purpose” of protecting “[b]uildings or property within special maritime and territorial jurisdiction.” Def.'s Suppl. Br. 10. Yet the...