F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

S A B I L M. M U J

A H I D , Defendant-Appellant

. Nos. 11-30276 12-30070

D.C. No. 3:10-cr-00091- HRH-1

OPI NI ON

A ppeal from the United States District Court

for the District of Alaska H. Russel Holland, Senior District J udg e, Presiding

Arg ued and Submitted J une 2, 2014 Submission Vacated October 23, 2014 Resubmitted Aug ust 27, 2015 A nchorag e, Alaska

F iled Aug ust 27, 2015

B e fore: J . Clifford W allace, Kim McL ane W ardlaw, and Morg an Christen, Circuit J udg es.

Opinion by J udg e ChristenU N I T E D S T A T E S V

. M U J A H I D 2

SUMMARY *

Crim inal Law

The panel affi r m e d defendant’s convictions f or four
counts o f sex ual abuse a n d three counts of abusive sex ual
contact while a n inmate at the A nchorag e Correctional Complex

.

T h e p a nel held that 18 U.S.C. §§ 2 241, 2242, a nd 224 4
, which criminaliz e sex u al a ssaults in facilities w h ere federal inma t es are held by ag reement w ith state a nd local
g overnments, are not facially unconstitutional; they a re a necessary and proper means o f ex ercising the federal authority that permits Cong ress to create federal c riminal l aws, to punish their violations, to imprison violators

, t o provide a ppropriately for those imprisoned, and to m a i ntain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.

The p anel h eld, for the same r easons, that §§ 2241, 2242, and 2244 are p lainly constitutional as applied to an individual in fe deral custody w ho is being held in a state facility pursuant to a contract with a federal ag ency

.

The panel h eld that in prosecutions u nder §§ 2241, 2242, and 2244, the district court may determine as a matter of law whether the facility at w hich the alleg ed crime took place is

o ne “in which persons are held in custody by direction of o r

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M U J A H I D 3

pursuant to a contract or ag reement with t h e head of any F ederal department or ag ency .”

COUNSEL

J ohn P. B alaz s (arg

ued), L a w Office of J ohn P. B alaz s, Sacramento, California, for Defendant-Appellant.

J o A n n F a rring ton ( arg ued), Assistant United States Attorney ; Karen L oeffler, U nited States Attorney
, Un ited States Attorney ’s Office, Anchorag e, Alaska, for Plainti f f -Appellee.

OP INION

CHRI STEN, Circuit J udg e:

Sex ual assault b y a n d a gainst prison inmates is a d i stressing and pernicious problem. I n this case, w e dec i d e whether the Constitution g ives Cong ress the power to address it by criminaliz ing sex ual a ssaults in facilities where federal inmates are h eld by ag reement w ith state a nd local
g overnments. W e a lso decide whether the ex istence of such

an ag reement is a question of law that may be decided by the trial court. Our answer to both questions is “y es.”

BACK G ROUND

On March 5, 2009, Sabil Mumin Mujahid was arrested in Anchorag e, Alaska after officers found a firearm in the trunk of a c ar he had dr i v e n t o t h e Nesbett Courthouse for a bail hearing on a p ending state drug c h arg e. M ujahid was taken
to the Anchorag e Correctional Complex

, which p r o videsU N I T E D S T A T E S V

. M U J A H I D 4

housing for state prisoners as w ell as fe d e r a l prisoners pursuant to a contract with the U.S. Marshals Service.

The d ay after his a

rrest, Mujahid was charg ed in a federal criminal complaint with one c o u nt o f b e ing a felon in possession of a firearm. 1 The federal court order ed h im detained pending

trial, and thereafter the state court revoked his bail on the drug c h a

r g e. I n J une 2009, a jury convicted Mujahid on the federal felon-in-possession char ge

. The f e d e r a l c o u r t s e n t e n c e d M u j a h id to 120 month s ’ im p r i s onment. 2 On J une 2 8, 2010—after the state d rug charg e was resolved—Mujahid w as transf e rred from the Anchorag e Correctional Complex to a federal prison in W a shing ton state.

During h is time at the Anchorag e Correctional Complex

, Mujahid repeatedly

sex ually assaulted other prisoners. As a result, he was charg ed with multiple c o unts of ag g ravated

sex ual a buse, sex ual abuse, and abusive sex ual contact, in violation of 18 U.S.C. §§ 2241, 2242, and 2244, respectively

.

18 U.S.C. § 2241 defines and pro s c ribes ag g ravated

sex ual abuse by a

n y person “in the special maritime a nd territorial jurisdi c t i o n o f the U nited States or in a F ederal prison, or in any prison

, institution, o r facility in which
persons are h e l d i n c ustody by direction of or pursuant to a contrac t o r agreement with the head o f any Federal depart ment or agency .” (Emphasis a dded.) 18 U .S.C. §§ 2242 a n d 2 244 d efine and proscribe sex ual a buse a nd

1 A g ran d j u ry

in d i cted h im

o n th is ch arg e tw elv e d ay s later.

2 W e later af

f ir m e d t h e j u d g m en t o f co n v ictio n an d th e sen ten ce. S ee Un ited S ta tes v. Mu

ja h i d , 4 3 3 F. A p p’ x 5 5 9 (9 th Cir. 2 01 1 ).U N I T E D S T A T E S V

. M U J A H I D 5

abusive sex u al contact, respectively

, under the same circumstances.

B e fore trial, Mujahid moved to dismiss the indictment on the g r ound that the “the Constitution does not confer upon the National Government the power to suppress violent crime that occurs in state jails.” H e a rg ued that 18 U.S.C. § § 2241, 2242, and 2 244 ex ceed Cong r ess’ authority under Article I o f the Constitution and c ontravene the Tenth Amendment, both “facially and as applied.” Mujahid did not ex plain, however, why the statutes would be unconstitutional a s applied to him if they are constitutional on their face.

The district court denied Mujahid’s motion to d ismiss. I n April 2011, the g o vernment filed a second superseding indictment, w hich added additi o n a l counts under the same statutes. The parties stipulated that the district court’s order

on the motion to dismiss applied to all counts in th e s e c o n d superseding indictment.

Mujahid was tried before a jury in J une 2 0 11. At trial, Deputy U.S. Marshal Rochelle L iedike testified on behalf o f the government c o ncerning the Anchorag e Correctional Complex

. L iedike ex plained that there are no federal prisons in Alaska, but th a t t h e U .S. Marshals Service has a contract with the Alaska Department of Corrections to house federal prisoners. L iedike testified t hat the majority o f federal inmates in Alaska a

r e detained at the Anchorag e Correctional Complex

, where the Marshals Service has contract e d f o r 60 beds. She a

uthenticated a c o p y of the contract, which was introduced into evidence a s E x h i bit 23. L iedike confirmed that the contract was in effect from May 3, 2009, t h r o ug h Ma y 2 6
, 2 010—the period during which the events charg ed in the second superseding indictment took place.U N I T E D S T A T E S V

. M U J A H I D 6

At the end of the trial, the district court told counsel that it w ould use the Ninth Circuit Pat t e r n J u ry I nstructions to instruct the jury that the g overnment must p rove b ey ond a reasonable doubt that “the offense was committed at the Anc horag e Correctional Complex .” 3 Mujahid objected,
arg uing that the jury should also have to determine whether the Anchorag e Correctional Complex is “a f acility i n which
persons are held in custody by direction o f or pursuant to a contract or ag reement with the head o f a ny F ederal department or ag ency .” See 18 U .S.C. §§ 2241, 2242, 2244. The district court overruled this objection, stating “the

ex i s t e n c e o f the contract is a leg al question for the Court to d ecide, and the fact q

uestion that’s for the jury to de c i d e i s simply was the victim h oused in, y ou know, the institution.” The court subsequently g ranted the g overnment’s unopposed motion for a leg al finding on the record, a nd “conclude[ d] that, as a matter of law, the Anchorag e Correctional Complex is a facility in w hich p ersons are held in custody pursuant to

an ag reement with the United States Marsha l s Service, a federal ag ency .”

Mujahid was convicted of four co u n t s of ag g ravated

sex ual a b u s e in violation of 18 U .S.C. § 2241 and three
counts of a

busive sex ual contact i n v i o lation of 18 U .S.C.

3 T h e p attern j u ry in stru ctio n s f o r 1 8 U.S.C

. § § 2 2 4 1
, 2 2 4 2
, an d 2 2 4 4
state th at th e j u ry m

u st f in d “ th e o f

f en se w as co m

m itted at [ sp ecify p la ce

o f fed era l j u risd ictio n ].” See Nin th Circu it P attern Crim i n al J u ry In stru ctio n s §§ 8 .1 6 4
, 8.1 7 0 , 8 .1 7 9 . T h e co m m en ts to In stru ctio n 8 .1 6 4

ex p lain : “ W h eth er th e crim e alleg ed o ccu rred at a p articu lar lo catio n i s a q u estio n o f f

act. W h eth er th e lo catio n i s w ith in th e sp ecial m aritim e an d territo rial j u risd ictio n o f th e Un ited States o r a f ed eral p riso n is a q u estio n

o f law .” T h e co m

m en ts d o n o t ad d ress th e p ro v isio n co n cern in g f acilities

w h ere f ed eral d etain ees are h eld p u rsu an t to a co n tract, w h ich w as ad ded
to th e statu te relativ ely

recen tly

.U N I T E D S T A T E S V

. M U J A H I D 7

§ 2244. The district court sentenced him to 480 months’ imprisonment. Mujahid timely f iled a notice of appeal from the judg ment in September 2011.

F ou r m o n t h s later, Mujahid f iled a pro se motion for a

new trial in district court. Mujahid arg ue d that the
g overnment withheld eviden c e , n a m e l y , a m e m orandum letter and remand detainer that “could have showed that comity was with the State o f A laska at the time of the alleg e[ d ] assault on J ohn D oe 3 and J ohn Doe 6.” M u j a h i d contended that a fter he was c o nvicted on the federal felon-in-possession charg e , the f ederal g overnment transferred “custody back to the State of Al a ska” so Mujahid could be tried on the state d rug charg es. The d istrict court correctly determined that while it did not h ave jurisdiction to g rant the motion absent a remand from this cour t , it did have jurisdiction to d e ny the motion. See United States v. H

ays , 454 F

. 2 d 274, 275 (9th Cir. 1 972) (per curiam). The court ruled it wou l d d e c line to seek a remand “when d e f

endant is currently represented b y counsel.” Mujahid filed a second notice of a ppeal from the order deny ing his pro se motion for a new tri a l

. W e sua sponte consolidated Mujahid’s two appeals.

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U .S.C. § 1291. W e r eview de novo whether a criminal statute is an uncon s t i t utional overreach of cong ressional a uthority

. United States v. Bohn

, 622 F .3d 1129, 1133 ( 9th Cir. 2010). W e also review de

novo w hether the d istrict court’s jury instructions omitted an

e lement of the charg ed offense. United States v. C h er e r , 513 F .3d 1150, 1154 (9th Cir. 2008).U N I T E D S T A T E S V

. M U J A H I D 8

D ISCUSSION

Mujahid r aises tw o a

r g uments in this appeal. F irst, he
arg ues the district court erred by deny ing his mot i o n t o dismiss the indictment because the statutes of conviction a re unconstitutional. Second, he arg ues that w h e ther the A n c h o rag e Correctional Complex is a facility in whic h
persons are held pursuant to a contract with the h e ad of a federal ag ency is a question o f fact that should have been determined by

the jury

, not the trial judg e. W e address each issue in turn.

I. The district court correctly denied Mujahid’s m otion to dism iss the indictm ent.

A. The challenged statute s are not facially unconstitutional.

As orig inally enacted in 1986, the sta t u t es o f conviction proscribed ag g ravated sex ual abuse, sex u al abuse, a nd abusive sex ual contact by any p erson “in the maritime a nd territorial jurisdiction of the U n i t e d States or in a F ederal prison.” 4 Sex ual Abuse Act of 1 986, Pub. L

. No. 99-654, 100 Stat. 3660 (codified as a mended at 1 8 U .S.C. §§ 2 241–2244). I n 2003, Cong ress passed the Prison Rape Elimination Act, which contained measures desig ned to reduce the widespread incidence of sex ual assault in prisons, such as g rants to states

4 P rio r to 1 9 8 6
, fe d e r a l law crim in alized rap e o ccu rrin g in th e sp ecial territo rial j u risd ictio n o f th e Un ited States. T h e S ex u al A b u se A ct o f 1 9 8 6

w as d esig n ed to en su

re th e f ed eral g ov ern m en t h ad j u risd ictio n o v er sex

o f f en ses occu rrin g in p riso n s n o t lo cated w ith in th e Un ited States’ sp ecial territo rial j u risd ictio n

. S

ee H .R. Rep

. N o

. 9 9- 5 9 4
, at 1 2 (1 9 8 6 ), rep rin ted in 1 9 86 U.S.C.C.A .N. 6 1 8 6 , 6 1 92

.U N I T E D S T A T E S V

. M U J A H I D 9

for prevention of prison rape and the est a b l i shment o f a National Pri s o n Rape Reduction Commission. Prison Rape Elimination Act of 2003, Pub. L

. No. 108-79, 117 Stat. 972. Then, in 2006, Cong ress ex panded the jurisdictional reach o f the statutes of conviction to include offenses “in any prison, institution, or facility in which persons are held in custody b y direction of or pursuant to a contract or ag ree m e n t with the A t t orney General.” Violence Ag ainst W omen a n d Department of J ustice Reauthoriz ation Act of 2005
, Pub. L

. No. 109-162, § 1177(a), 119 Stat. 2960, 3125 (2006) (codified as amended at 18 U.S.C. §§ 2241–2244).

This 2006 amendment is the focus o f Mujahid’s constitutional claim. M u j a h i d arg ues the “police power” belong s to the states, and Cong r ess acted bey ond its limited, enumerated powers when it ex tended t h e statutory reach to

cover sex ual a

buse t h a t o c curs in state a nd local institutions where federal detainees are held pursuant to a contract with

a federal ag ency

. The g overnment respo n d s that the 2006 amendment was a proper ex ercise of Congress’ authority to pass “necessary and p roper” laws concerning feder al prisoners.

I n evaluating Mujahid’s claim, we are mindful that Mujahid b ears a “heavy burden” to d emonstrate the statutes

are not within the scope of Cong r ess’ constitutional a uthority

. See United States v. Salerno

, 481 U.S. 7 3 9, 745 (1987). The Supreme Court h a s e x plained that “[ a ] facial challeng e to a leg islative A ct is

. . . the most d i f f i c u l t challeng e to mount successfully

, since the challeng er must establish that no set o f circumstances ex ists under which the Act would be valid.” I d

. ; s e e also Hotel & Motel Ass’n o f Oakland v. City o

f Oakland

, 344 F .3d 959, 9 71 (9th Cir. 2 0 0 3 ) (ex plaining Salerno is the standard for demonstrating a statute is faciallyU N I T E D S T A T E S V

. M U J A H I D 10

unconstitutional “ o u t s i d e t h e co n tex t of the F irst Amendment”).

“[ T] he Neces s a r y and Proper Clause g rants Cong ress broad authority to enact federal leg islation.” United States v

. Comstock

, 560 U.S. 1 26, 133 (2010). I n g eneral, a statute is

w ithin the scope of Cong ress’ authority a s long as i t “constitutes a means tha t is r ationally related to the implementation of a constitutionally enumerated power.” Id.
at 1 3 4; see also United States v. Kebodeaux

, 133 S. Ct. 2496, 2503 (2013). Thus, althoug h “ ‘Congr e s s c annot punish felonies g enerally ,’” Bond v. United States , 134 S. Ct. 2077, 2086 ( 2014) (quoting Cohens v

. Virginia
, 6 W heat. 264, 428 (1821)), it is well esta b lished that Cong ress may c reate federal crimes under the Necessary a n d Proper Clause, see Comstock

, 560 U.S. at 1 35–36. I ndeed, Mujahid f orthrig htly acknowledg es that “Cong ress routinely ex ercises its authority
to enact c riminal laws in furtherance of

, f or ex ample, its enumerated p owers to r eg u late interstate and foreig n commerce, t o enforce civil r ig hts,

. . . and so forth.” See id.
at 1 36. Mujahid also acknowledg es that as a corollary to its
power to enact federal criminal laws, Cong ress may establish

a prison sy stem and “enact laws that seek to ensure t h at sy stem’s safe and responsible a dministration [ as w ell as] the safety of the prisoners, prison workers and visitors, and those in surrounding communities.” 5 I d. a t 137.

5 As a n e x a m

p le o f a l aw d esig n ed to en su re p riso n s af

ety , Co msto ck cited 18 U.S.C. § 1 79 1
, a statu te th at p ro h ib its sm u g g lin g o f co n t

rab an d

. S ee Co msto ck

, 5 6 0 U.S. at 1 3 7

. T h at s tatu te co n tain s a j u risd ictio n al
p ro v isio n v irtu ally id en tical to th e j u risd ictio n al p ro v isio n in th e statu tes h ere. S ee 1 8 U.S.C. § 1 7 9 1 (d )(4 ) (d e fi n i n g “ p riso n ” to in clu d e “ an y p riso n , in stitu

tio n , o r f acility in w

h ich perso n s are h eld in cu sto d y b y d irectio n o f o r p u r s u a n t to a co n tract o r ag reem en t w ith th e A tto rn ey Gen eral”).U N I T E D S T A T E S V

. M U J A H I D 11

I n Comstock

, apply ing these principles, the S u preme Court upheld a federal civil-commitment statute authoriz ing the continued detention of “a mentally ill, sex ually dang erous federal prisoner bey ond the date the prisoner would otherwise be released.” Id. at 129 (citing 18 U .S.C. § 4248). The Court concluded the statute was “a ‘necessary and p roper’ means o f

ex e r cising the federal aut h o r i t y that p ermits Cong ress to create federal c ri m i n a l laws, to punish their violation, to imprison violators, to provide a p p ropriately for those imprisoned, and to maintain the security of those who a re not imprisoned but wh o may be affected by the federal impriso n m e n t of others.” I d. at 149. I n reaching this conclusion, the Court considered five factors: “(1) the breadth

o f t h e Necessary and Proper Clause, (2) the long history o f federal i n v o l v ement in this arena, (3) the sound r e asons for the statute’s e nactment in lig ht of the Government’s custodial interest

. . . , ( 4) the statute’s a ccommodation of state i nterests, and ( 5) the statute’s narrow scope.” I d. Mujahid
arg ues these factors cut in the direction of unconstitutionality in this case. W e disag ree.

F irst, a s we have ex plained, t h e N ecessary and Proper Clause g rants Cong r ess broad power to enact leg isla tion, including leg islation desig ned to facilitate appropria t e enforcement of federal c ri minal laws enacted in furtherance of Cong ress’ enumerated powers. S e e id. at 133–37.

Se cond, Cong ress has long b een involved in leg islating the terms of federal imprisonment. 6 See Ex parte

6 U n til th e 1 9 0 0 s, th ere w ere n o f ed eral p riso n s , so all f

ed eral p riso n ers

w ere h o u sed in state f

acilities. S

ee Ho we v. S

mith

, 4 5 2 U.S. 4 7 3
, 4 8 3 (1 9 8 1). In t

h e 1 8 0 0 s , Co n g ress g av e th e f ed eral co u rts an d later th e A tto rn ey Gen eral b ro ad au th o rity t o assig n f ed eral p riso n ers to a su itab leU N I T E D S T A T E S V

. M U J A H I D 12

Karstendick

, 93 U.S. 396, 398–401 (1876). Mujahid u rg es us to focus specifically on the federal g overnment’s i n volvement in proscribing sex ual a b u s e a t state or local prisons. B ut in Comstock

, the Court looked not to the history of the particular
statute at is s u e i n that c ase, b ut rather to the broader history of federal involvement “in the delivery of mental health care to federal prisoners,” including throug h civil comm i t m ent. 560 U .S. at 137–38. Here, the federal g overnment h as been directly involved in the safe and orderly incarce r a t ion o f federal prisoners since at least 1891, when the federal prison
sy stem was establishe d. Cong ress enacted 18 U .S.C. §§ 2241, 2242, a

nd 2244 to aid “the F ederal G overnment’s oblig ation to maintain order within prisons.” See H.R. Rep. No. 99-594, a t 12 (1986)

, r eprinted in 1986 U.S.C.C.A.N. 6186, 6 192. The 20 0 6 a m e ndment ex tending jurisdiction

over offenses that take place in state facil i t i e s where federal prisoners are housed strikes us as a “modest addition to a long standing federal statutory framew ork.” See Comstock

, 560 U.S. at 142.

Third, the statutes h ere, like the civil commitment statute in Comstock

, are “‘reasonably adapted’ to C o n gress’ power to act as a responsible federal custodian.” Id. at 143 (quoting United S tates v. Darby

, 312 U.S. 100, 121 (1941)). Cong ress has found a “hig h incidence of sex ual assault w ithin prisons,” which has numerous detrimental effects on both inmates a nd the bro a der community

. See 4 2 U.S.C. § 15601. Cong ress has a stro n g interest in and o blig ation to create a safe environment for federal p risoners and t h o s e housed with federal p risoners, including by preventing sex ual assaults. T o

p riso n

. S ee Co sg ro ve v. S

mith

, 6 97 F.2 d 1 1 2 5
, 1 1 3 5

– 36 (D.C. C ir. 1 9 8 3 ). Fed eral l aw p ro v id ed th at f ed eral priso n ers w o u ld b e su b j ect to th e sam e

co n d itio n s as state p riso n ers. S ee id

. at 1 13 6

.U N I T E D S T A T E S V

. M U J A H I D 13

d o a n y thing less would risk deny ing prisoners their Eig ht h Amendment r ig hts. See id. (ex plaining sex ual assault within prisons “ involves actual and potential v iolations of the United States Constitution”); F

a r m er v

. Brennan
, 511 U .S. 825, 832–34 ( 1 994) (prison off i c i a l’s deliberate indifference to substantial r isk of serious harm violates prisoners’ rig ht to be free from cruel and unusual punishment). Mujahid arg ues the
statutes are unnecessary because all fifty states criminaliz e

sex offenses. B ut even if this is true, there is no g uarantee a state will choose to prosecut e an offense committed by o r ag ainst a federal prisoner that occurs in a state prison, and at any rate, Cong ress’ power is not dependent on state inaction. See C o m stock

, 560 U.S. a t 1 34 (Cong ress may enact laws “rationally related to the implementation of a constitutionally enumerated power”).

F ourth, althoug h the statutes at issue do not ex pressly accommodate state interests, the g overnment c orrectly

o bserves that they “do not supplant State leg islation addressing the same topic; rather, like many f ederal criminal statutes, they cr eate concurrent and complementary jurisdiction.”

F inally

, the links between the statutes and an enumerated Article I p o w e r “are not too a ttenuated.” See id. at 146. A s

we have ex plained, Cong ress may enact crim i nal laws to implement its enumerated powers, as well as ot h er l a ws to

ensure the just p u n ishment o f those convicted under federal criminal law s

. Mujahid points out that the statutes “cover offenses c ommitted by state inmates, state employ e e s, a nd
persons w ho visit inmates in st a t e c u stody at any institution where federal inmates are held” p ursuant to a contract with a federal ag ency

. B ut this c a se involves a crime committed b y

a federal inmate, not a crime committed by one state inmateU N I T E D S T A T E S V

. M U J A H I D 14

ag ainst a nother. E ven assuming Cong ress could not authoriz e federal juri s diction over the latter scenario, 7 the statutes a re not so overbroad as to completely ex ceed Cong re s s ’ p o wer under the Necessary and Proper Clause. S e e S alerno

, 481 U.S. at 745.

L ike the civil commitment statute in Comstock

, 1 8 U .S.C. §§ 2241, 2242, and 2244 are not facially unconstitutional; they are “a ‘necessary and proper’ means o f ex erc ising the federal a uthority that permit s C ong ress to create federal criminal laws, to punish their violation, to imprison violators,
to provide appropriately for those imprisone d

, and to maintain the security of those w h o ar e not imprisoned but who may b e affected by the federal imprisonment o f others.” 8 See Comstock

, 560 U.S. at 149.

B. Mujahid has not s how n the statutes are unconstitutional as applied to him

.

I n h i s opening brief on appeal, Mujahid arg ues the
statutes of c onviction may b e unconstitutional as applied to him because “ the State of Al a ska may have had primary custody and jurisdiction over h im since his initial a rrest.” He seeks remand to the district c o urt for this determination. I n response, the g overnment correctly points out that althoug h Mujahid’s motion to d ismiss the indi ctment nominally challeng ed the constitutionality of the statutes “facially a nd

as applied,” it did not indicate that Mujahid mig ht be in state

7 W e em p h asize th at w e d o n o t

d ecid e th is q u estio n

.

8 B ecau se w e d ecid e t

h e statu t es are co n stitu

tio n al u n d er th e Necessary

an d P ro p er Clau se, w e n e e d n o t co n sid er th e g o v ern m en t’ s altern ativ e Sp en d in g Clau se arg u m en t.U N I T E D S T A T E S V

. M U J A H I D 15

custody or otherw i s e a

rticulate any facts that would support

an as-applied challeng e to the statutes. Mujahid replies that the “as-applied” challeng e raised in the motion to dismiss is based o n his status a s “a federal pre-trial detainee being h eld with mostly state inmates at the Anchorag e Correctional Complex pursuant to a c ontract with the U .S

. Marshals Ser v ice.” H e contends this is a “separate and distinct”
arg ument from his post-trial, p ro se claim that the state h ad primary custody over him.

Mujahid thus effectively concedes that the motion to dismiss t h e indictment did not a rticulate an as-applied challeng e; it was premised on th e a s s u mption that Mujahid

was a federa l detainee. 9 F o r the reasons set forth in the previous section, 18 U

. S .C. §§ 2241, 2 242, and 2244 a re plainly constitutional as applied to a n individual in federal custody w ho is being held in a state facility pu r suant to a contract with a federal ag ency

.

Until he filed his pro se motion for a n ew trial, Mujahid did not raise the arg u ment that he may h ave been in state custody when the a ssaults took place. B ecause Mujahid was represented by counsel, the di s t r ict court acted within its discretion by declining to seek a remand in order to consider this arg ument. See United S tates v. Bergman
, 813 F

. 2d 1027, 1030 (9th Cir. 1987) (“A criminal defendant does n ot have an absolute rig ht to both self-representation and the assistance o f counsel. The decision to allow such hy brid representation is

w ithin the sound discretion of the [ trial] judg e.” ( citat i o n omitted)). The district court did not r ule on Mujah i d ’ s a sapplie d c h a l l eng e. W e a lso decline to do so. See Davis v

.

9 T h ere is n o d isp u te th at t h e assau lts to o k place af ter Mu j ah id w as f ed erally in d i cted an d o rd ered d etain ed p en din g trial o n th e f ed eral ch arg e.U N I T E D S T A T E S V

. M U J A H I D 16

Nordstrom, I

nc. , 755 F. 3 d 1089, 1 094 (9th Cir. 2 014) (ex plaining federal appellate court will “not consider a n issue
not passed upon b e l o w ” when record has not been f ully developed (internal quotation marks omitted)). 1 0

II. The district court properly decided the jurisdictional

com ponent of t he statutes o f conviction as a m atter of law

. Mujahid arg u e s t h e district court erred by deciding as a matter of law that the A nchorag e Correctional Complex is a “facility in w hich p e r sons are held in custody

. . . p ursuant to

a c ontract or ag reement with the head of any F ede ra l department o r ag ency ,” see 1 8 U.S

. C

. § § 2241, 2242, 2244, and ins t r u c t i n g the jury that it need only determine whether the crimes in fact occurred at the A n c horag e Correctional Complex

. Mujahid r e lies primaril y on United States v

. Gaudin , 515 U.S. 506 (1995).

I n Gaudin

, the defendant was convicted o f m a k i ng material false statements in a matter w ithin the jurisdiction o f

a federal ag ency , in violation of 18 U.S.C. § 1001. Id. at 507. The district court concluded, based on testimony proffered b y the g overnment, that the all e g ed false statements were material, and it so instructed th e j u r y

. Id. at 5 0 8. The Supreme Court conclude d the district court violated the defendant’s F ifth and Six th Amendment rig ht to have the jury determine each element of the cr i m e b ey ond a reasonable doubt. Id. a t 5 22–23. The Court rejected the g overnment’s
arg ument that the Constitution requires the jury to determine only the facts underly ing the materiality d etermination. Id. at

10 T h e d istric t c o u r t r e m ain s f ree t o reco n sid er th is issu e u po n an ap p ro p riate m o tio n

.U N I T E D S T A T E S V

. M U J A H I D 17

514 (“[ T] h e jury ’s constitutional responsibility is not merely
to d etermine the facts, but to apply the law to those facts a nd draw the ultimate conclusion of g u ilt or innocence.”).

After Gaudi n , w e have approved of the trial court deciding the jurisdictional component of a crime to the ex tent it presents a pure question of law with no disputed questions of fact underlying it. See, e.g. , United States v

. Smith

, 282 F .3d 7 5 8
, 7 67 (9th Cir. 2002) ( “ A district court may determine as a matter of l a w t h e ex istence of federal jurisdi ct i o n over [ a] g eog raphic area, b ut the locus of the offense within that ar ea i s a n issue for the trier of fact.” (quoting United States v. W arren , 984 F

. 2d 325, 327 ( 9th Cir. 1993)) (inte r nal quotation marks omitted)). Thus, for

ex a mple, in United S t a t e s v. Perlaza

, we held that the Maritime Drug L aw Enforcem e n t Act w as unconstitutional insofar as it required the distri c t court to determine a jurisdictional component—whether a v essel was stateless— that turned on disputed questions o f fa c t

. 439 F .3d 1149, 1165–67 (9th Cir. 2006). B y contrast, i n U nited States v

. Zakharov

, we h eld t h e d i s trict court could decide the jurisdictional component—whether a vessel was su b j e c t to the United States’ jurisdiction where the f lag nation had g iven its consent—because the issu e d i d not turn on disputed questions of fact. 4 6 8 F .3d 1171, 1 176 & n.3 (9th Cir. 2006).

Similarly

, we have held that the “ex istence of [ a] contract based on undisputed f

acts is a question of law.” Chateau des Charmes W

ines Ltd. v. Sabate USA Inc.
, 328 F .3d 528, 530 (9th Cir. 2003) (per curiam) (citing Helash v. Ballard

, 638 F

. 2d 74, 75 (9th Cir. 1980) (per curiam)). Here, there is

no factual dispute concerning the ex istence of a co n t r act between the U.S. Marshals Service and the Alaska Department of Corrections to house federal prisoners at theU N I T E D S T A T E S V

. M U J A H I D 18

Anchorag e Correctional Complex

. Mujahid’s opening brief does not point to any facts that would undermine the validity of the specific written contract introduced by the g overnment at trial. 1 1 W e conclude, therefore, that the ex istence of this

con t r a c t i s a question of law, a s there is no factual question for the jury

to decide. Cf. id. (“[ W ] hether the parties ag reed to a forum selection clause is a question of law[

. ] ”).

Mujahid arg u es that it was error for the district court not
to let the jury make this determination because it invol v es a mix ed question of law a nd fact

, a s i n G audin

. He f urther contends that the statutory lang uag e requires the g overnment to prove not only the ex istence of a contract or ag reement, but also that at least one f

e deral inmate (and perhaps more, depending on how “pers o n s ” is r ead) was in fact held in custody at the f

acility at the time of the c rime. W e a re p e rsuaded that the more natural reading is that t h e g overnment must simply

prove there is an effective contract

or ag reement to hold federal d etainees in c u s t o d y , and that where, a s here, the facts are undisputed, the t rial court may make this determination. See id

. 1 2

11 In h is rep ly b rief

, Mu j ah id sp ecu lates w ith o u t an y ev id en tiary su p p o rt th at th e ag reem en t m ay n o t h a ve b e e n w ith th e “ h ead ” o f th e U .S. Marsh als Serv ice, an d th at it m ay n o t h av e b een in ef f ect w h en th e crim es

o ccu rred

. We co n clu d e Mu j ah id w aiv e d t h e se arg u m en ts b y f ailin g to raise th em b ef

o re th e d istrict co u rt an d in h is o p en in g b rief o n ap peal. S ee Trig u ero s v. Ad

a ms , 6 5 8 F. 3 d 9 8 3
, 98 8 (9 th C ir. 20 1 1) (“ Ord in arily

, arg u m en t s n o t raised b ef o re th e d istrict co u rt are w aiv ed o n ap p eal.”); S mith v. Ma rsh

, 1 9 4 F.3 d 1 0 4 5
, 1 0 5 2 (9 t h Cir. 1 9 9 9 ) (“ [O]n ap p eal,
arg u m en ts n o t raised b y a p arty in its o p en in g b rief are d eem ed w aiv ed .”).

12 Mu j ah id w ou ld h av e u s treat th e q u estio n o f t h e ex isten ce o f a co n t

ract lik e th e req u irem en t in a f ed eral ban k ro b b ery p ro s ecu tio n th at th e g o v ern m en t p ro v e th e b an k is FDIC- in su

red to th e j u ry , ev en if

th e f acts

are u n d isp u ted

. S

ee Un ited S ta tes v. Ja mes , 9 8 7 F.2 d 6 4 8 , 6 50 (9 th Cir.U N I T E D S T A T E S V

. M U J A H I D 19

Moreover, even if we were to conclude it was error for the district court to decide a s a matter of law that the Anchorag e Correctional Complex is a facility in which p ersons are h eld i n custody pursuant to an a g reement with the U.S. Mars h a l s Ser v i c e, w e would c onclude that any error was harmless based on the contract an d testimony proffered by the
g overnment at trial. See United States v

. Thongsy

, 577 F .3d 1036, 1043 (9th Cir. 2009) (“An error

. . . omitting an element o f the offense in a jury instruction is harmless if it is ‘clear bey o n d a r easonable doubt that a rational jury would have f ound the defendant g uilty absent the error.’” (quoting Neder v. United States , 527 U.S. 1, 18 (1999))).

I n sum, w e hold that in prosecutions under 18 U .S.C. §§ 2241, 2242, and 2244, the district court may determine a s

a matter of law whether the facility at which the a lleg ed crime took place is o ne “ in which persons a re h e ld in custody b y direction of or pursuant to a contract or ag reement w i t h the head o f any F ederal department o r ag enc y .” The question

1 9 9 3 ) (w h eth er a b an k is FDIC- in su red is a q u estio n o f f

act f o r th e j u ry ). B u t w e can n o t treat th e q u estio n h er e a s o n e o f f act in all in stan ces, b ecau se w e h av e h eld t

h at—at least w

h en f acts are u n d isp u

ted —co n t ract f o rm atio n i s a q u estio n o f law

. C h a tea u d es Ch a rmes W

in es Ltd

. , 3 2 8 F.3 d at 5 3 0

. B ecau se th at p reced en t reso lv es th is case, w e n eed n o t d eterm in e w

h eth er th e q u estio n h ere is a lwa ys a q u estio n of l aw , as in ou r

r ecen t d ecisio n in Un ited Sta tes v. Z ep ed a , No

. 1 0

- 1 0 1 3 1
, 2 0 1 5 W L 4 0 8 0 1 6 4
, at * 1 (9 th Cir. Ju ly 7
, 2 01 5 ) (en b an c) (co n clu d in g th at, u n d e r th e In dian Maj o r Crim es A ct, th e trial j u d g e sh o u ld d eterm in e as a m atter

o f law w h eth er a d ef

en d an t’ s alleg ed trib e is f ed erally r e c o g n i zed

, sin ce

su ch reco g n itio n is “ a p o l itical d ecisio n m ad e so l e ly by th e f ed eral
g o v ern m en t an d ex pressed in au t h o ritativ e ad m in istrativ e do cu m en ts”). A lth o u g h Zep ed

a m ay w ell su g g est th at th e q u estio n h ere, lik e th e q u estio n t h ere, can b e d ecid ed b y th e trial co u rt ev en if f acts are d i sp u ted

, w e n eed n o t reso l v e t h a t i ssu e. No r d o w e n eed to reso lv e an y ap p aren t ten s io n b etw een Zep ed

a an d Ja mes

.U N I T E D S T A T E S V

. M U J A H I D 20

whether the crime occurred at the facility must be submitted to the jury , as it was here.

CONCLUSION

F or the foreg oing reasons, we AF F IRM Mujahid ’s convictions.