373 F. Supp. 3d 247
D.C. Cir.2019Background
- In September 2012 militants attacked two U.S. sites in Benghazi (the Mission and the Annex); four Americans died, including Ambassador J. Christopher Stevens.
- Mustafa Al‑Imam was captured in Libya in October 2017 by U.S. forces, transported to D.C., and indicted on a 17‑count superseding indictment charging conspiracy, material support, murder/attempted murder of U.S. officers, attacks on federal facilities, arson/explosive offenses, and related counts.
- Al‑Imam moved to dismiss all but one count, arguing (1) most statutes lack extraterritorial reach, (2) his forcible capture violated international law and multilateral treaties (so prosecution is barred), and (3) the Mission and Annex were not lawful federal facilities/U.S. property under the statutes.
- The court treated many arguments as foreclosed by its prior rulings in United States v. Abu Khatallah and applied D.C. Circuit precedent reconciling Bowman with modern extraterritoriality doctrine.
- The court denied dismissal on all counts: it held the charged statutes (except §1363 which was analyzed under SMTJ facts) apply extraterritorially under Bowman/Delgado‑Garcia, rejected the treaty/abduction bar under Alvarez‑Machain, and found treaty rules (Vienna Conventions) do not negate the statutory definitions of federal facility/U.S. property.
Issues
| Issue | Plaintiff's Argument (Al‑Imam) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Extraterritorial reach of charged statutes (Counts 1–2, 4–17) | Statutes are silent on extraterritoriality and therefore do not apply abroad | Bowman/Delgado‑Garcia allow inference of extraterritoriality where statute protects U.S. government interests and had many obvious extraterritorial applications | Denied dismissal: statutes apply extraterritorially under Bowman as interpreted by Delgado‑Garcia and this court's Abu Khatallah analysis |
| Material‑support (§2339A) ancillary reach | §2339A should not reach predicates that lack extraterritorial reach (so counts tied to those predicates must fall) | §2339A follows reach of its predicate substantive offenses | Denied: §2339A covers material support for predicates the court held extraterritorial |
| Applicability of 18 U.S.C. §1363 (SMTJ) | §1363 is a pure property crime; cannot be an offense against a U.S. national for SMTJ purposes | §1363’s aggravated form includes life‑endangerment element; under §7(9) offenses committed against U.S. nationals fall within SMTJ | Denied: Government may prove SMTJ via §7(9) (offense that places U.S. nationals’ lives in jeopardy qualifies) |
| Capture/abduction and treaty bar to prosecution | Abduction from Libya violated U.N. Charter and multilateral "extradite or prosecute" conventions; those treaties preclude prosecution | Alvarez‑Machain and Ker/Frisbie control: treaty language here does not bar forcible rendition to U.S. courts | Denied: Alvarez‑Machain forecloses treating multilateral conventions as a bar to prosecution based on forcible capture |
| Federal‑facility and U.S. property status (Counts 10–15, §930, §844) | Mission/Annex lacked lawful diplomatic/consular recognition under Vienna Conventions, so they are not federal facilities or U.S. property | Statutory definitions control; Vienna rules on establishment of permanent missions do not alter what §930/§844 mean | Denied: Vienna Conventions govern establishment of permanent missions, not the statutory definitions; issue is factual and the government may prove elements at trial |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (Sup. Ct.) (presumption against extraterritoriality)
- Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247 (Sup. Ct.) (apply presumption in all cases absent clear congressional intent)
- EEOC v. Arabian American Oil Co., 499 U.S. 244 (Sup. Ct.) (statutory silence does not imply extraterritorial reach)
- Small v. United States, 544 U.S. 385 (Sup. Ct.) (need convincing indication to rebut presumption)
- United States v. Bowman, 260 U.S. 94 (Sup. Ct.) (criminal statutes protecting U.S. government interests may be inferred to reach extraterritorially in certain categories)
- United States v. Delgado‑Garcia, 374 F.3d 1337 (D.C. Cir. 2004) (applies Bowman in D.C. Circuit; statutes with many obvious extraterritorial applications satisfy Bowman)
- United States v. Alvarez‑Machain, 504 U.S. 655 (Sup. Ct.) (forcible abduction does not bar prosecution absent treaty language making extradition the exclusive means)
- Ker v. Illinois, 119 U.S. 436 (Sup. Ct.) (forum jurisdiction not defeated by forcible abduction)
- Frisbie v. Collins, 342 U.S. 519 (Sup. Ct.) (same)
- United States v. Rezaq, 134 F.3d 1121 (D.C. Cir.) (discusses Ker‑Frisbie and treaty exceptions)
- Apprendi v. New Jersey, 530 U.S. 466 (Sup. Ct.) (sentencing‑exposure facts are elements for jury)
- Alleyne v. United States, 570 U.S. 99 (Sup. Ct.) (same re: facts increasing mandatory minimum)
- United States v. Yermian, 468 U.S. 63 (Sup. Ct.) (no knowledge required of federal jurisdictional facts)
- Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir.) (limits Bivens extraterritorial application; statutory extraterritoriality requires sufficient indication)