FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SABIL M. MUJAHID,

Defendant-Appellant.

Nos. 11-30276

12-30070

D.C. No.

3:10-cr-00091-

HRH-1

OPINION

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, Senior District Judge, Presiding

Argued and Submitted June 2, 2014

Submission Vacated October 23, 2014

Resubmitted August 27, 2015

Anchorage, Alaska

Filed August 27, 2015

Before: J. Clifford Wallace, Kim McLane Wardlaw,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen
2 UNITED STATES V. MUJAHID

SUMMARY*

Criminal Law

The panel affirmed defendant’s convictions for four

counts of sexual abuse and three counts of abusive sexual

contact while an inmate at the Anchorage Correctional

Complex.

The panel held that 18 U.S.C. §§ 2241, 2242, and 2244,

which criminalize sexual assaults in facilities where federal

inmates are held by agreement with state and local

governments, are not facially unconstitutional; they are a

necessary and proper means of exercising the federal

authority that permits Congress to create federal criminal

laws, to punish their violations, to imprison violators, to

provide appropriately for those imprisoned, and to maintain

the security of those who are not imprisoned but who may be

affected by the federal imprisonment of others. 

The panel held, for the same reasons, that §§ 2241, 2242,

and 2244 are plainly constitutional as applied to an individual

in federal custody who is being held in a state facility

pursuant to a contract with a federal agency. 

The panel held that in prosecutions under §§ 2241, 2242,

and 2244, the district court may determine as a matter of law

whether the facility at which the alleged crime took place is

one “in which persons are held in custody by direction of or

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MUJAHID 3

pursuant to a contract or agreement with the head of any

Federal department or agency.”

COUNSEL

John P. Balazs (argued), Law Office of John P. Balazs,

Sacramento, California, for Defendant-Appellant.

JoAnn Farrington (argued), Assistant United States Attorney;

Karen Loeffler, United States Attorney, United States

Attorney’s Office, Anchorage, Alaska, for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge:

Sexual assault by and against prison inmates is a

distressing and pernicious problem. In this case, we decide

whether the Constitution gives Congress the power to address

it by criminalizing sexual assaults in facilities where federal

inmates are held by agreement with state and local

governments. We also decide whether the existence of such

an agreement is a question of law that may be decided by the

trial court. Our answer to both questions is “yes.”

BACKGROUND

On March 5, 2009, Sabil Mumin Mujahid was arrested in

Anchorage, Alaska after officers found a firearm in the trunk

of a car he had driven to the Nesbett Courthouse for a bail

hearing on a pending state drug charge. Mujahid was taken

to the Anchorage Correctional Complex, which provides
4 UNITED STATES V. MUJAHID

housing for state prisoners as well as federal prisoners

pursuant to a contract with the U.S. Marshals Service.

The day after his arrest, Mujahid was charged in a federal

criminal complaint with one count of being a felon in

possession of a firearm.1 The federal court ordered him

detained pending trial, and thereafter the state court revoked

his bail on the drug charge. In June 2009, a jury convicted

Mujahid on the federal felon-in-possession charge. The

federal court sentenced Mujahid to 120 months’

imprisonment.2 On June 28, 2010—after the state drug

charge was resolved—Mujahid was transferred from the

Anchorage Correctional Complex to a federal prison in

Washington state.

During his time at the Anchorage Correctional Complex,

Mujahid repeatedly sexually assaulted other prisoners. As a

result, he was charged with multiple counts of aggravated

sexual abuse, sexual abuse, and abusive sexual contact, in

violation of 18 U.S.C. §§ 2241, 2242, and 2244, respectively.

18 U.S.C. § 2241 defines and proscribes aggravated

sexual abuse by any person “in the special maritime and

territorial jurisdiction of the United States or in a Federal

prison, or in any prison, institution, or facility in which

persons are held in custody by direction of or pursuant to a

contract or agreement with the head of any Federal

department or agency.” (Emphasis added.) 18 U.S.C.

§§ 2242 and 2244 define and proscribe sexual abuse and

 

1

 A grand jury indicted him on this charge twelve days later.

2 We later affirmed the judgment of conviction and the sentence. See

United States v. Mujahid, 433 F. App’x 559 (9th Cir. 2011).
UNITED STATES V. MUJAHID 5

abusive sexual contact, respectively, under the same

circumstances.

Before trial, Mujahid moved to dismiss the indictment on

the ground that the “the Constitution does not confer upon the

National Government the power to suppress violent crime

that occurs in state jails.” He argued that 18 U.S.C. §§ 2241,

2242, and 2244 exceed Congress’ authority under Article I of

the Constitution and contravene the Tenth Amendment, both

“facially and as applied.” Mujahid did not explain, however,

why the statutes would be unconstitutional as applied to him

if they are constitutional on their face.

The district court denied Mujahid’s motion to dismiss. In

April 2011, the government filed a second superseding

indictment, which added additional counts under the same

statutes. The parties stipulated that the district court’s order

on the motion to dismiss applied to all counts in the second

superseding indictment.

Mujahid was tried before a jury in June 2011. At trial,

Deputy U.S. Marshal Rochelle Liedike testified on behalf of

the government concerning the Anchorage Correctional

Complex. Liedike explained that there are no federal prisons

in Alaska, but that the U.S. Marshals Service has a contract

with the Alaska Department of Corrections to house federal

prisoners. Liedike testified that the majority of federal

inmates in Alaska are detained at the Anchorage Correctional

Complex, where the Marshals Service has contracted for 60

beds. She authenticated a copy of the contract, which was

introduced into evidence as Exhibit 23. Liedike confirmed

that the contract was in effect from May 3, 2009, through

May 26, 2010—the period during which the events charged

in the second superseding indictment took place.
6 UNITED STATES V. MUJAHID

At the end of the trial, the district court told counsel that

it would use the Ninth Circuit Pattern Jury Instructions to

instruct the jury that the government must prove beyond a

reasonable doubt that “the offense was committed at the

Anchorage Correctional Complex.”3 Mujahid objected,

arguing that the jury should also have to determine whether

the Anchorage Correctional Complex is “a facility in which

persons are held in custody by direction of or pursuant to a

contract or agreement with the head of any Federal

department or agency.” See 18 U.S.C. §§ 2241, 2242, 2244. 

The district court overruled this objection, stating “the

existence of the contract is a legal question for the Court to

decide, and the fact question that’s for the jury to decide is

simply was the victim housed in, you know, the institution.” 

The court subsequently granted the government’s unopposed

motion for a legal finding on the record, and “conclude[d]

that, as a matter of law, the Anchorage Correctional Complex

is a facility in which persons are held in custody pursuant to

an agreement with the United States Marshals Service, a

federal agency.”

Mujahid was convicted of four counts of aggravated

sexual abuse in violation of 18 U.S.C. § 2241 and three

counts of abusive sexual contact in violation of 18 U.S.C.

3 The pattern jury instructions for 18 U.S.C. §§ 2241, 2242, and 2244

state that the jury must find “the offense was committed at [specify place

of federal jurisdiction].” See Ninth Circuit Pattern Criminal Jury

Instructions §§ 8.164, 8.170, 8.179. The comments to Instruction 8.164

explain: “Whether the crime alleged occurred at a particular location is a

question of fact. Whether the location is within the special maritime and

territorial jurisdiction of the United States or a federal prison is a question

of law.” The comments do not address the provision concerning facilities

where federal detainees are held pursuant to a contract, which was added

to the statute relatively recently.
UNITED STATES V. MUJAHID 7

§ 2244. The district court sentenced him to 480 months’

imprisonment. Mujahid timely filed a notice of appeal from

the judgment in September 2011.

Four months later, Mujahid filed a pro se motion for a

new trial in district court. Mujahid argued that the

government withheld evidence, namely, amemorandum letter

and remand detainer that “could have showed that comitywas

with the State of Alaska at the time of the allege[d] assault on

John Doe 3 and John Doe 6.” Mujahid contended that after

he was convicted on the federal felon-in-possession charge,

the federal government transferred “custody back to the State

of Alaska” so Mujahid could be tried on the state drug

charges. The district court correctly determined that while it

did not have jurisdiction to grant the motion absent a remand

from this court, it did have jurisdiction to deny the motion. 

See United States v. Hays, 454 F.2d 274, 275 (9th Cir. 1972)

(per curiam). The court ruled it would decline to seek a

remand “when defendant is currently represented by

counsel.” Mujahid filed a second notice of appeal from the

order denying his pro se motion for a new trial. We sua

sponte consolidated Mujahid’s two appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo whether a criminal statute is an unconstitutional

overreach of congressional authority. United States v. Bohn,

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

novo whether the district court’s jury instructions omitted an

element of the charged offense. United States v. Cherer,

513 F.3d 1150, 1154 (9th Cir. 2008).
8 UNITED STATES V. MUJAHID

DISCUSSION

Mujahid raises two arguments in this appeal. First, he

argues the district court erred by denying his motion to

dismiss the indictment because the statutes of conviction are

unconstitutional. Second, he argues that whether the

Anchorage Correctional Complex is a facility in which

persons are held pursuant to a contract with the head of a

federal agency is a question of fact that should have been

determined by the jury, not the trial judge. We address each

issue in turn.

I. The district court correctly denied Mujahid’s motion

to dismiss the indictment.

A. The challenged statutes are not facially

unconstitutional.

As originally enacted in 1986, the statutes of conviction

proscribed aggravated sexual abuse, sexual abuse, and

abusive sexual contact by any person “in the maritime and

territorial jurisdiction of the United States or in a Federal

prison.”4 Sexual Abuse Act of 1986, Pub. L. No. 99-654, 100

Stat. 3660 (codified as amended at 18 U.S.C. §§ 2241–2244). 

In 2003, Congress passed the Prison Rape Elimination Act,

which contained measures designed to reduce the widespread

incidence of sexual assault in prisons, such as grants to states

4 Prior to 1986, federal law criminalized rape occurring in the special

territorial jurisdiction ofthe United States. The Sexual Abuse Act of 1986

was designed to ensure the federal government had jurisdiction over sex

offenses occurring in prisons not located within the United States’special

territorial jurisdiction. See H.R. Rep. No. 99-594, at 12 (1986), reprinted

in 1986 U.S.C.C.A.N. 6186, 6192.
UNITED STATES V. MUJAHID 9

for prevention of prison rape and the establishment of a

National Prison Rape Reduction Commission. Prison Rape

Elimination Act of 2003, Pub. L. No. 108-79, 117 Stat. 972. 

Then, in 2006, Congress expanded the jurisdictional reach of

the statutes of conviction to include offenses “in any prison,

institution, or facility in which persons are held in custody by

direction of or pursuant to a contract or agreement with the

Attorney General.” Violence Against Women and

Department of Justice Reauthorization 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 of Mujahid’s

constitutional claim. Mujahid argues the “police power”

belongs to the states, and Congress acted beyond its limited,

enumerated powers when it extended the statutory reach to

cover sexual abuse that occurs in state and local institutions

where federal detainees are held pursuant to a contract with

a federal agency. The government responds that the 2006

amendment was a proper exercise of Congress’ authority to

pass “necessary and proper” laws concerning federal

prisoners.

In evaluating Mujahid’s claim, we are mindful that

Mujahid bears a “heavy burden” to demonstrate the statutes

are not within the scope of Congress’ constitutional authority. 

See United States v. Salerno, 481 U.S. 739, 745 (1987). The

Supreme Court has explained that “[a] facial challenge to a

legislative Act is . . . the most difficult challenge to mount

successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.” 

Id.; see also Hotel & Motel Ass’n of Oakland v. City of

Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (explaining

Salerno is the standard for demonstrating a statute is facially
10 UNITED STATES V. MUJAHID

unconstitutional “outside the context of the First

Amendment”).

“[T]he Necessary and Proper Clause grants Congress

broad authority to enact federal legislation.” United States v.

Comstock, 560 U.S. 126, 133 (2010). In general, a statute is

within the scope of Congress’ authority as long as it

“constitutes a means that is rationally related to the

implementation of a constitutionally enumerated power.” Id.

at 134; see also United States v. Kebodeaux, 133 S. Ct. 2496,

2503 (2013). Thus, although “‘Congress cannot punish

felonies generally,’” Bond v. United States, 134 S. Ct. 2077,

2086 (2014) (quoting Cohens v. Virginia, 6 Wheat. 264, 428

(1821)), it is well established that Congress may create

federal crimes under the Necessary and Proper Clause, see

Comstock, 560 U.S. at 135–36. Indeed, Mujahid forthrightly

acknowledges that “Congress routinelyexercises its authority

to enact criminal laws in furtherance of, for example, its

enumerated powers to regulate interstate and foreign

commerce, to enforce civil rights, . . . and so forth.” See id.

at 136. Mujahid also acknowledges that as a corollary to its

power to enact federal criminal laws, Congress may establish

a prison system and “enact laws that seek to ensure that

system’s safe and responsible administration [as well as] the

safety of the prisoners, prison workers and visitors, and those

in surrounding communities.”5 Id. at 137.

5 As an example of a law designed to ensure prison safety, Comstock

cited 18 U.S.C. § 1791, a statute that prohibits smuggling of contraband. 

See Comstock, 560 U.S. at 137. That statute contains a jurisdictional

provision virtually identical to the jurisdictional provision in the statutes

here. See 18 U.S.C. § 1791(d)(4) (defining “prison” to include “any

prison, institution, or facility in which persons are held in custody by

direction of or pursuant to a contract or agreement with the Attorney

General”).
UNITED STATES V. MUJAHID 11

In Comstock, applying these principles, the Supreme

Court upheld a federal civil-commitment statute authorizing

the continued detention of “a mentally ill, sexually dangerous

federal prisoner beyond 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 proper’ means of

exercising the federal authority that permits Congress to

create federal criminal laws, to punish their violation, to

imprison violators, to provide appropriately for those

imprisoned, and to maintain the security of those who are not

imprisoned but who may be affected by the federal

imprisonment of others.” Id. at 149. In reaching this

conclusion, the Court considered five factors: “(1) the breadth

of the Necessary and Proper Clause, (2) the long history of

federal involvement in this arena, (3) the sound reasons for

the statute’s enactment in light of the Government’s custodial

interest . . . , (4) the statute’s accommodation of state

interests, and (5) the statute’s narrow scope.” Id. Mujahid

argues these factors cut in the direction of unconstitutionality

in this case. We disagree.

First, as we have explained, the Necessary and Proper

Clause grants Congress broad power to enact legislation,

including legislation designed to facilitate appropriate

enforcement of federal criminal laws enacted in furtherance

of Congress’ enumerated powers. See id. at 133–37.

Second, Congress has long been involved in legislating

the terms of federal imprisonment.6See Ex parte

6 Until the 1900s, there were no federal prisons, so all federal prisoners

were housed in state facilities. See Howe v. Smith, 452 U.S. 473, 483

(1981). In the 1800s, Congress gave the federal courts and later the

Attorney General broad authority to assign federal prisoners to a suitable
12 UNITED STATES V. MUJAHID

Karstendick, 93 U.S. 396, 398–401 (1876). Mujahid urges us

to focus specificallyon the federal government’s involvement

in proscribing sexual abuse at state or local prisons. But in

Comstock, the Court looked not to the history of the particular

statute at issue in that case, but rather to the broader history

of federal involvement “in the delivery of mental health care

to federal prisoners,” including through civil commitment. 

560 U.S. at 137–38. Here, the federal government has been

directly involved in the safe and orderly incarceration of

federal prisoners since at least 1891, when the federal prison

system was established. Congress enacted 18 U.S.C.

§§ 2241, 2242, and 2244 to aid “the Federal Government’s

obligation to maintain order within prisons.” See H.R. Rep.

No. 99-594, at 12 (1986), reprinted in 1986 U.S.C.C.A.N.

6186, 6192. The 2006 amendment extending jurisdiction

over offenses that take place in state facilities where federal

prisoners are housed strikes us as a “modest addition to a

longstanding federal statutory framework.” See Comstock,

560 U.S. at 142.

Third, the statutes here, like the civil commitment statute

in Comstock, are “‘reasonably adapted’ to Congress’ power

to act as a responsible federal custodian.” Id. at 143 (quoting

United States v. Darby, 312 U.S. 100, 121 (1941)). Congress

has found a “high incidence of sexual assault within prisons,”

which has numerous detrimental effects on both inmates and

the broader community. See 42 U.S.C. § 15601. Congress

has a strong interest in and obligation to create a safe

environment for federal prisoners and those housed with

federal prisoners, including bypreventing sexual assaults. To

prison. See Cosgrove v. Smith, 697 F.2d 1125, 1135–36 (D.C. Cir. 1983). 

Federal law provided that federal prisoners would be subject to the same

conditions as state prisoners. See id. at 1136.
UNITED STATES V. MUJAHID 13

do anything less would risk denying prisoners their Eighth

Amendment rights. See id. (explaining sexual assault within

prisons “involves actual and potential violations of the United

States Constitution”); Farmer v. Brennan, 511 U.S. 825,

832–34 (1994) (prison official’s deliberate indifference to

substantial risk of serious harm violates prisoners’ right to be

free from cruel and unusual punishment). Mujahid argues the

statutes are unnecessary because all fifty states criminalize

sex offenses. But even if this is true, there is no guarantee a

state will choose to prosecute an offense committed by or

against a federal prisoner that occurs in a state prison, and at

any rate, Congress’ power is not dependent on state inaction. 

See Comstock, 560 U.S. at 134 (Congress may enact laws

“rationally related to the implementation of a constitutionally

enumerated power”).

Fourth, although the statutes at issue do not expressly

accommodate state interests, the government correctly

observes that they “do not supplant State legislation

addressing the same topic; rather, like many federal criminal

statutes, they create concurrent and complementary

jurisdiction.”

Finally, the links between the statutes and an enumerated

Article I power “are not too attenuated.” See id. at 146. As

we have explained, Congress may enact criminal laws to

implement its enumerated powers, as well as other laws to

ensure the just punishment of those convicted under federal

criminal laws. Mujahid points out that the statutes “cover

offenses committed by state inmates, state employees, and

persons who visit inmates in state custody at any institution

where federal inmates are held” pursuant to a contract with a

federal agency. But this case involves a crime committed by

a federal inmate, not a crime committed by one state inmate
14 UNITED STATES V. MUJAHID

against another. Even assumingCongress could not authorize

federal jurisdiction over the latter scenario,7the statutes are

not so overbroad as to completely exceed Congress’ power

under the Necessary and Proper Clause. See Salerno,

481 U.S. at 745.

Like the civil commitment statute in Comstock, 18 U.S.C.

§§ 2241, 2242, and 2244 are not facially unconstitutional;

they are “a ‘necessary and proper’ means of exercising the

federal authority that permits Congress to create federal

criminal laws, to punish their violation, to imprison violators,

to provide appropriately for those imprisoned, and to

maintain the security of those who are not imprisoned but

who may be affected by the federal imprisonment of others.”8

See Comstock, 560 U.S. at 149.

B. Mujahid has not shown the statutes are

unconstitutional as applied to him.

In his opening brief on appeal, Mujahid argues the

statutes of conviction may be unconstitutional as applied to

him because “the State of Alaska may have had primary

custody and jurisdiction over him since his initial arrest.” He

seeks remand to the district court for this determination. In

response, the government correctly points out that although

Mujahid’s motion to dismiss the indictment nominally

challenged the constitutionality of the statutes “facially and

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

 

7

 We emphasize that we do not decide this question.

8 Because we decide the statutes are constitutional under the Necessary

and Proper Clause, we need not consider the government’s alternative

Spending Clause argument.
UNITED STATES V. MUJAHID 15

custody or otherwise articulate any facts that would support

an as-applied challenge to the statutes. Mujahid replies that

the “as-applied” challenge raised in the motion to dismiss is

based on his status as “a federal pre-trial detainee being held

with mostly state inmates at the Anchorage Correctional

Complex pursuant to a contract with the U.S. Marshals

Service.” He contends this is a “separate and distinct”

argument from his post-trial, pro se claim that the state had

primary custody over him.

Mujahid thus effectively concedes that the motion to

dismiss the indictment did not articulate an as-applied

challenge; it was premised on the assumption that Mujahid

was a federal detainee.9 For the reasons set forth in the

previous section, 18 U.S.C. §§ 2241, 2242, and 2244 are

plainly constitutional as applied to an individual in federal

custody who is being held in a state facility pursuant to a

contract with a federal agency.

Until he filed his pro se motion for a new trial, Mujahid

did not raise the argument that he may have been in state

custody when the assaults took place. Because Mujahid was

represented by counsel, the district court acted within its

discretion by declining to seek a remand in order to consider

this argument. See United States v. Bergman, 813 F.2d 1027,

1030 (9th Cir. 1987) (“A criminal defendant does not have an

absolute right to both self-representation and the assistance of

counsel. The decision to allow such hybrid representation is

within the sound discretion of the [trial] judge.” (citation

omitted)). The district court did not rule on Mujahid’s asapplied challenge. We also decline to do so. See Davis v.

9 There is no dispute that the assaults took place after Mujahid was

federally indicted and ordered detained pending trial on the federal charge.
16 UNITED STATES V. MUJAHID

Nordstrom, Inc., 755 F.3d 1089, 1094 (9th Cir. 2014)

(explaining federal appellate court will “not consider an issue

not passed upon below” when record has not been fully

developed (internal quotation marks omitted)).10

II. The district court properly decided the jurisdictional

component of the statutes of conviction as a matter of

law.

Mujahid argues the district court erred by deciding as a

matter of law that the Anchorage Correctional Complex is a

“facility in which persons are held in custody . . . pursuant to

a contract or agreement with the head of any Federal

department or agency,” see 18 U.S.C. §§ 2241, 2242, 2244,

and instructing the jury that it need only determine whether

the crimes in fact occurred at the Anchorage Correctional

Complex. Mujahid relies primarily on United States v.

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

In Gaudin, the defendant was convicted of making

material false statements in a matter within the jurisdiction of

a federal agency, in violation of 18 U.S.C. § 1001. Id. at 507. 

The district court concluded, based on testimony proffered by

the government, that the alleged false statements were

material, and it so instructed the jury. Id. at 508. The

Supreme Court concluded the district court violated the

defendant’s Fifth and Sixth Amendment right to have the jury

determine each element of the crime beyond a reasonable

doubt. Id. at 522–23. The Court rejected the government’s

argument that the Constitution requires the jury to determine

only the facts underlying the materiality determination. Id. at

10 The district court remains free to reconsider this issue upon an

appropriate motion.
UNITED STATES V. MUJAHID 17

514 (“[T]he jury’s constitutional responsibility is not merely

to determine the facts, but to apply the law to those facts and

draw the ultimate conclusion of guilt or innocence.”).

After Gaudin, we have approved of the trial court

deciding the jurisdictional component of a crime to the extent

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 758, 767 (9th Cir. 2002) (“A district court may

determine as a matter of law the existence of federal

jurisdiction over [a] geographic area, but the locus of the

offense within that area is an issue for the trier of fact.”

(quoting United States v. Warren, 984 F.2d 325, 327 (9th Cir.

1993)) (internal quotation marks omitted)). Thus, for

example, in United States v. Perlaza, we held that the

Maritime Drug Law Enforcement Act was unconstitutional

insofar as it required the district court to determine a

jurisdictional component—whether a vessel was stateless—

that turned on disputed questions of fact. 439 F.3d 1149,

1165–67 (9th Cir. 2006). By contrast, in United States v.

Zakharov, we held the district court could decide the

jurisdictional component—whether a vessel was subject to

the United States’ jurisdiction where the flag nation had given

its consent—because the issue did not turn on disputed

questions of fact. 468 F.3d 1171, 1176 & n.3 (9th Cir. 2006).

Similarly, we have held that the “existence of [a] contract

based on undisputed facts is a question of law.” Chateau des

Charmes Wines 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 existence of a contract

between the U.S. Marshals Service and the Alaska

Department of Corrections to house federal prisoners at the
18 UNITED STATES V. MUJAHID

Anchorage 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 government

at trial.11 We conclude, therefore, that the existence of this

contract is a question of law, as there is no factual question

for the jury to decide. Cf. id. (“[W]hether the parties agreed

to a forum selection clause is a question of law[.]”).

Mujahid argues that it was error for the district court not

to let the jury make this determination because it involves a

mixed question of law and fact, as in Gaudin. He further

contends that the statutory language requires the government

to prove not only the existence of a contract or agreement, but

also that at least one federal inmate (and perhaps more,

depending on how “persons” is read) was in fact held in

custody at the facility at the time of the crime. We are

persuaded that the more natural reading is that the

government must simply prove there is an effective contract

or agreement to hold federal detainees in custody, and that

where, as here, the facts are undisputed, the trial court may

make this determination. See id.

12

11 In his reply brief, Mujahid speculates without any evidentiary support

that the agreement may not have been with the “head” of the U.S.

Marshals Service, and that it may not have been in effect when the crimes

occurred. We conclude Mujahid waived these arguments by failing to

raise them before the district court and in his opening brief on appeal. See

Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011) (“Ordinarily,

arguments not raised before the district court are waived on appeal.”);

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,

arguments not raised by a party in its opening brief are deemed waived.”).

12 Mujahid would have us treat the question of the existence of a contract

like the requirement in a federal bank robbery prosecution that the

government prove the bank is FDIC-insured to the jury, even if the facts

are undisputed. See United States v. James, 987 F.2d 648, 650 (9th Cir.
UNITED STATES V. MUJAHID 19

Moreover, even if we were to conclude it was error for the

district court to decide as a matter of law that the Anchorage

Correctional Complex is a facility in which persons are held

in custody pursuant to an agreement with the U.S. Marshals

Service, we would conclude that any error was harmless

based on the contract and testimony proffered by the

government at trial. See United States v. Thongsy, 577 F.3d

1036, 1043 (9th Cir. 2009) (“An error . . . omitting an

element of the offense in a jury instruction is harmless if it is

‘clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error.’” (quoting

Neder v. United States, 527 U.S. 1, 18 (1999))).

In sum, we hold that in prosecutions under 18 U.S.C.

§§ 2241, 2242, and 2244, the district court may determine as

a matter of law whether the facility at which the alleged crime

took place is one “in which persons are held in custody by

direction of or pursuant to a contract or agreement with the

head of any Federal department or agency.” The question

1993) (whether a bank is FDIC-insured is a question of fact for the jury). 

But we cannot treat the question here as one of fact in all instances,

because we have held that—at least when facts are undisputed—contract

formation is a question of law. Chateau des Charmes Wines Ltd.,

328 F.3d at 530. Because that precedent resolves this case, we need not

determine whether the question here is always a question of law, as in our

recent decision in United States v. Zepeda, No. 10-10131, 2015 WL

4080164, at *1 (9th Cir. July 7, 2015) (en banc) (concluding that, under

the Indian Major Crimes Act, the trial judge should determine as a matter

of law whether a defendant’s alleged tribe is federally recognized, since

such recognition is “a political decision made solely by the federal

government and expressed in authoritative administrative documents”). 

Although Zepeda may well suggest that the question here, like the

question there, can be decided by the trial court even if facts are disputed,

we need not resolve that issue. Nor do we need to resolve any apparent

tension between Zepeda and James.
20 UNITED STATES V. MUJAHID

whether the crime occurred at the facility must be submitted

to the jury, as it was here.

CONCLUSION

For the foregoing reasons, we AFFIRM Mujahid’s

convictions.