United States v. Ayesh
762 F. Supp. 2d 832
E.D. Va.2011Background
- Defendant Osama Esam Saleem Ayesh, a Jordan resident, worked for the U.S. State Department at the U.S. Embassy in Baghdad as a shipping and customs supervisor.
- Two Blanket Purchase Agreements with Sukar Al-Zubaidi Company (SZC) governed delivery and customs services during 2008–2010, under which Ayesh was a BPA caller authorized to arrange services.
- Prosecution alleges Ayesh diverted funds from BPA payments—$116,105 under BPA SIZ100-08-A-0628 (Nov 2008–Apr 2009) and $121,131 under BPA SIZ100-09-A-0496 (May 2009–Jun 2010)—to a Jordanian account controlled by his wife.
- A fictitious SZC email address controlled by Ayesh allegedly sent WTPIFs to direct payments to his wife’s account, concealing the true recipient.
- Investigation followed an FBI/State OIG probe; Ayesh was lured to the U.S. and arrested at Dulles International Airport after an indictment charging three counts under 18 U.S.C. §§ 641 and 208(a).
- Count I and Count II allege embezzlement/steal of U.S. government funds intended for BPA services, and Count III alleges a conflict of interest under § 208(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 641 and § 208 have extraterritorial reach | Ayesh’s conduct produced effects in the U.S. via domestic transfers; statutes apply terrestrially or extraterritorially as justified by Bowman. | Conduct occurred abroad; no explicit extraterritorial congressional grant; minimal domestic contact. | Statutes extend extraterritorially; jurisdiction proper. |
| Are the offenses sufficiently tied to U.S. jurisdiction under Bowman and related doctrine | Offenses are against government assets/contracts; not localized to one territory; Bowman supports extraterritorial application. | Bowman should be limited to specific contexts; here contact is foreign and not justified. | Extraterritorial application supported by government-interest rationale consistent with Bowman. |
| Do international-law principles justify extraterritorial jurisdiction | Protective and objective territorial principles justify enforcement when abroad harm affects U.S. interests. | International-law concerns should limit extraterritorial reach; not necessary if statute is domestic. | Both protective and objective territorial principles support extraterritorial reach. |
| Is there due process nexus between defendant and the United States | Ayesh’s embassy employment and conduct create sufficient nexus for prosecution in U.S. courts. | No irregular nexus beyond foreign conduct; risk of arbitrariness. | Sufficient nexus established; due process satisfied. |
| Do the charges survive dismissal given threshold jurisdictional issues | Extrateritorial reach defeats threshold dismissal; statutes stand. | If extraterritorial, dismissal should follow absent adequate nexus. | Defendant’s motions to dismiss denied. |
Key Cases Cited
- United States v. Bowman, 260 U.S. 94 (U.S. 1922) (extraterritorial reach for offenses not dependent on locality)
- Cotton v. United States, 471 F.2d 744 (9th Cir. 1973) (extraterritorial application of §641; government assets protection)
- United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (international-law principles; protective principle; territoriality concepts)
- United States v. Mohammad-Omar, 323 Fed.Appx. 259 (4th Cir. 2009) (sufficient nexus for extraterritorial application; due process considerations)
- United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984) (extraterritorial reach for government-related offenses)
- United States v. Layton, 855 F.2d 1388 (9th Cir. 1988) (murder of a U.S. congressman; extraterritorial jurisdiction rationale)