94 F.4th 782
9th Cir.2023Background
- Defendant Ahmed Alahmedalabdaloklah ("Oklah"), a Syrian national, was tried in the District of Arizona for allegedly designing/manufacturing electronic components (DTMF boards, transmitters/receivers) used in IEDs by the 1920s Revolution Brigades in Iraq; physical evidence linking him (fingerprints, IDs) was recovered from two Baghdad raid sites.
- Jury convicted Oklah on Counts 1 (conspiracy to use a weapon of mass destruction, 18 U.S.C. § 2332a) and 2 (conspiracy to damage U.S. government property by explosive, 18 U.S.C. § 844(f) & (n)), and on Counts 3–4 (18 U.S.C. § 924(c)/(o)); acquitted on Counts 5–6.
- The Government’s proof relied on overseas depositions (notably Jamal Al‑Dhari), emails among alleged co-conspirators, TEDAC/CEXC forensic reports, and expert testimony about IED components.
- Pretrial and trial discovery implicated classified material; the Government used CIPA procedures and substitutions; some state-secrets declarations lacked department-head attestation.
- On appeal the Ninth Circuit affirmed Counts 1 and 2, held Counts 3–4 must be vacated under United States v. Davis, reversed those convictions, reviewed CIPA rulings, confrontation/Brady/Napue claims regarding Al‑Dhari’s deposition, evidentiary rulings, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Oklah) | Held |
|---|---|---|---|
| Extraterritorial reach of 18 U.S.C. § 844(f)/(n) | § 844(f) targets damage to U.S. government property and, by nature and context, applies abroad (Bowman framework reconciled with RJR Nabisco). | § 844(f)/(n) lacks an express extraterritorial statement; Morrison/RJR Nabisco mandate presumption against extraterritoriality. | Statute rebutted presumption at Step One; § 844(f)/(n) applies extraterritorially and covers Oklah's conduct. |
| Validity of Counts 3–4 (crime-of-violence predicate) | Convictions supported by jury verdict under then-applicable law. | Post-Davis, the statute’s residual clause is void; Counts 3–4 cannot stand. | Counts 3–4 reversed and vacated; remand for resentencing. |
| Use of CIPA substitutions and withheld classified material; state-secrets invocation | CIPA substitutions preserved defendant’s ability to defend; classified material either not discoverable or not helpful; state-secrets privilege applies. | Substitutions and ex parte procedures denied adequate confrontation; some privilege declarations were improper because not signed by department head. | CIPA rulings upheld as not an abuse of discretion; substitutions adequate. But several state-secrets invocations lacked required department-head declarations; court excused remand because remand would be futile. |
| Admissibility/use of Jamal Al‑Dhari’s overseas deposition (Confrontation/Brady/Napue/hearsay) | Deposition was permitted by written stipulation and witness was unavailable despite good‑faith efforts; late disclosures were produced and not materially prejudicial; no Napue violation. | Deposition deprived defendant of face‑to‑face confrontation; Government delayed exculpatory/impeachment materials and used potentially false testimony; co‑conspirator hearsay improperly admitted. | Waiver of physical confrontation claim (joint stipulation); Government made reasonable efforts to secure witness; belated Brady/Giglio materials were not materially prejudicial; Napue/Brady claims failed; co‑conspirator statements admissible. |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (invalidated § 924(c) residual clause; required vacatur of Counts 3–4)
- United States v. Bowman, 260 U.S. 94 (1922) (extraterritorial application of criminal statutes may be inferred from nature of offense affecting government interests)
- RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016) (two‑step framework for extraterritoriality analysis)
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (presumption against extraterritoriality; framework for statutory reach)
- United States v. Reynolds, 345 U.S. 1 (1953) (state‑secrets privilege; requirement for formal invocation by department head)
- Sedaghaty v. Holder, 728 F.3d 885 (9th Cir. 2013) (CIPA principles and review standard)
- United States v. Felix‑Gutierrez, 940 F.2d 1200 (9th Cir. 1991) (applying Bowman to infer extraterritorial reach for statutes protecting U.S. government interests)
- United States v. Ubaldo, 859 F.3d 690 (9th Cir. 2017) (applying extraterritorial analysis to weapons‑smuggling statutes)
- United States v. Yida, 498 F.3d 945 (9th Cir. 2007) (analysis of government’s reasonable efforts to secure witness presence; deportation/unavailability context)