PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4266

OSAMA ESAM SALEEM AYESH,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, Senior District Judge.

(1:10-cr-00388-TSE-1)

Argued: September 20, 2012

Decided: December 18, 2012

Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and

Max O. COGBURN, Jr., United States District Judge

for the Western District of North Carolina,

sitting by designation.

Affirmed by published opinion. Judge Cogburn wrote the

opinion, in which Chief Judge Traxler and Judge Davis

joined. 
COUNSEL

ARGUED: Alan Hideto Yamamoto, Alexandria, Virginia, for

Appellant. Ellen Ruth Meltzer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON

BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia; Lanny A. Breuer, Assistant Attorney General,

Criminal Division, Greg D. Andres, Acting Deputy Assistant

Attorney General, Criminal Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

OPINION

COGBURN, District Judge:

Appellant Osama Esam Saleem Ayesh ("Ayesh") appeals

from a criminal judgment entered following a jury trial in the

United States District Court for the Eastern District of Virginia. Ayesh was convicted by a jury on two counts of theft

of public money (Counts 1 and 2), violations of 18 U.S.C.

§ 641, and on one count of committing acts affecting a personal financial interest (Count 3), a violation of 18 U.S.C.

§ 208(a). The District Court sentenced Ayesh to concurrent

terms of imprisonment of 42 months on each count, followed

by three years of supervised release. The District Court also

ordered Ayesh to pay a fine of $5,000 and restitution of

$243,416. On appeal, Ayesh contends that the district court

improperly exercised extraterritorial jurisdiction over him for

the counts of conviction, that it incorrectly denied his Motion

to Suppress his post-arrest statements, and that the evidence

was insufficient to sustain Ayesh’s convictions for theft of

public money. Finding no error, we affirm the district court.

2 UNITED STATES v. AYESH
I.

A.

On appeal, we consider the facts presented at trial in a light

most favorable to the government, as the prevailing party at

trial. United States v. Jefferson, 674 F.3d 332, 341 n.14 (4th

Cir. 2012). Ayesh, a resident of Amman, Jordan, was hired by

the U.S. Department of State to work as the shipping and customs supervisor at the U.S. Embassy in Baghdad, Iraq. While

there, Ayesh devised a scheme to divert United States funds

intended for shipping and customs clearance vendors to his

wife’s bank account in Jordan. As part of his scheme, Ayesh

established a phony email account, obtained a blank invoice

from a legitimate vendor, altered the document, and submitted

fraudulent invoices and wire transfers in the name of the vendor. In addition, Ayesh also obtained self-inking signature

stamps for the legitimate vendor, and kept all such instrumentalities in his living quarters, which were located on the

grounds of the U.S. Embassy in Baghdad. 

When U.S. officials suspected Ayesh’s wrongdoing, they

arranged for him to come to the United States under the pretext of attending a training seminar. Upon his arrival at Dulles

International Airport, in Chantilly, Virginia, Ayesh was

arrested and questioned by agents of the Federal Bureau of

Investigation (the "FBI") and the U.S. Department of State

(the "DOS"). After about five hours of questioning, Ayesh

confessed.

B.

On October 15, 2010, a grand jury returned a three-count

indictment against Ayesh, charging him in two counts with

theft of public money, in violation of 18 U.S.C. § 641, and in

one count with committing acts affecting a personal financial

interest, in contravention of 18 U.S.C. § 208(a). The district

court denied Ayesh’s motions to dismiss for lack of jurisdicUNITED STATES v. AYESH 3
tion, and to suppress his post-arrest statements. On February

2, 2011, a jury convicted Ayesh on all counts. 

II.

On appeal, Ayesh presents three contentions of error. First,

Ayesh contends that the district court improperly exercised

extraterritorial jurisdiction over him for violations of 18

U.S.C. §§ 208(a) and 641 occurring in Baghdad, Iraq. Second,

he contends that the district court incorrectly denied his

motion to suppress his post-arrest statements made to agents

of the FBI and DOS upon his arrival at Dulles. Third, Ayesh

contends that there was insufficient evidence to sustain his

convictions for theft of public money. We address each contention in turn.

A.

In his first contention, Ayesh argues that the district court

lacked extraterritorial jurisdiction over him for acts that

occurred outside the United States. Whether the district court

had subject matter jurisdiction is a question of law subject to

de novo review. United States v. Barton, 26 F.3d 490, 491

(4th Cir. 1994). 

"Congress has the authority to apply its laws, including

criminal statutes, beyond the territorial boundaries of the

United States." United States v. Dawn, 129 F.3d 878, 882 (7th

Cir. 1997). See also United States v. Bowman, 260 U.S. 94,

97-98 (1922). Whether Congress has exercised that authority

is a matter of statutory construction and, generally, statutes

enacted by Congress, including criminal statutes, apply only

within the territorial jurisdiction of the United States. EEOC

v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). 

The Supreme Court in Bowman held that if Congress

intends for overseas crimes "against private individuals or

their property . . . which affect the peace and good order of

4 UNITED STATES v. AYESH
the community," to be punished in this country, "it is natural

for Congress to say so in the statute, and failure to do so will

negative the purpose of Congress in this regard." Bowman,

260 U.S. at 98. But that is not the end of the analysis. The

Court went on to say that "the same rule of interpretation"

should not be applied to criminal statutes that are "not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the

government to defend itself against obstruction, or fraud

wherever perpetrated, especially if committed by its own citizens, officers, or agents." Id. (emphasis added). In such cases,

congressional intent may be "inferred from the nature of the

offense." Id. The Court added that to apply such a statute only

territorially would "[g]reatly . . . curtail the scope and usefulness of the statute and leave open a large immunity for frauds

as easily committed by citizens on the high seas and in foreign countries as at home." Id.

Clearly, as with the statute in Bowman criminalizing fraud

against a corporation in which the United States is a stockholder, congressional intent to exercise overseas jurisdiction

can be inferred from the nature of the offenses criminalized

by 18 U.S.C. §§ 208(a) and 641. Otherwise, government

employees, contractors, or agents like Ayesh—be they United

States citizens or foreign nationals—would be at liberty to pilfer public money or engage in acts of self-dealing with impunity so long as they did so abroad. Thus, we find that the

district court’s exercise of extraterritorial jurisdiction was

consistent with Congress’s intent that 18 U.S.C. §§ 208(a) and

641 be applied abroad. 

We further find that extraterritorial application of these

statutes comported with international law. See Murray v. The

Schooner Charming Betsy, 6 U.S. (2 Cranch.) 64, 118 (1804)

("an act of Congress ought never to be construed to violate the

law of nations if any other possible construction remains").

The district court’s exercise of jurisdiction is supported by the

protective principle of international law, which "permits a

UNITED STATES v. AYESH 5
nation to assert subject matter criminal jurisdiction over a person whose conduct outside the nation’s territory threatens the

national interest." United States v. Alomia-Riascos, 825 F.2d

769, 771 (4th Cir. 1987). Extraterritorial jurisdiction was also

appropriate under the territorial principle, which permits jurisdiction "over all acts which take effect within the sovereign

even though the author is elsewhere." Rivard v. United States,

375 F.2d 882, 886 (5th Cir. 1967) (citing Ford v. United

States, 273 U.S. 593 (1927)). Both statutes criminalize conduct that has effects within the United States and threatens the

operation of this nation’s governmental functions.

Finally, the district court’s exercise of extraterritorial jurisdiction comported with due process. See United States v.

Brehm, 691 F.3d 547, 552 (4th Cir. 2012). As the district

court noted, Ayesh’s "employment with the Department of

State at the United States Embassy in Baghdad was central to

the commission of his alleged crimes." J.A. 1384. Moreover,

Ayesh lived on the embassy compound, and was provided

with a copy of the Foreign Service National Handbook, which

advised him that he was subject to the laws and regulations

of the United States. Id. at 687, 693–94. 698. 

Thus, despite the fact that Ayesh is a foreign national and

all of the acts occurred in Jordan and Iraq, the district court

properly exercised extraterritorial jurisdiction over him. Finding no error in the district court’s denial of Ayesh’s motion

to dismiss, we affirm.

B.

In his second contention, Ayesh argues that the district

court incorrectly denied his motion to suppress his post-arrest

statements to FBI and DOS agents. In reviewing a district

court’s ruling on a motion to suppress, this Court reviews the

lower court’s factual findings for clear error and its legal conclusions de novo. United States v. Richardson, 607 F.3d 357,

369 (4th Cir. 2010), cert. denied, 131 S. Ct. 427 (2010).

6 UNITED STATES v. AYESH
Because the district court denied the motion, this Court construes the evidence in the light most favorable to the government. United States v. Black, 525 F.3d 359, 364 (4th Cir.

2008).

1.

Ayesh argues here, as he did below, that because he made

the statements during a lengthy interview after traveling from

Jordan for 19 hours without sleep or food, the statements he

made upon his arrival in the United States were involuntary

and coerced. 

It is undisputed that Ayesh was shadowed in his travels by

a DOS Office of the Inspector General ("OIG") agent, who

flew on the same plane and observed Ayesh after he landed

at JFK International Airport, in New York, and then, after a

six hour layover, at his final destination, Dulles. The record

below indicates that the agent remarked that Ayesh looked

"fine" upon arriving in New York. 

After he retrieved his checked luggage in Dulles, Ayesh

was arrested in the baggage claim area at 12:34 p.m. Agents

took custody of his bags and transported him to an FBI office

directly outside the airport. They did not question Ayesh during the ride, and when they arrived at the interview room a

few minutes later, they removed his handcuffs and offered

him food and drink, which he declined, and a bathroom break,

which he accepted. 

At 12:55 p.m., FBI Special Agent John Longmire and

DOS-OIG Special Agent Lloyd Rawls began explaining to

Ayesh the reasons for his arrest, the charges filed against him,

and his Miranda rights. When the agents began speaking to

Ayesh, they asked him multiple times if he was sufficiently

fluent in English to conduct an interview and if he wanted an

Arabic translator. He declined, asserted that he was fluent in

English, and said that he could read, write, speak, and underUNITED STATES v. AYESH 7
stand the language. The agents provided an Advice of Rights

form to Ayesh in both English and Arabic, read the enumerated rights verbatim to Ayesh, and explained the meaning of

each one to him. 

Ayesh asked the agents some questions about expected

court procedures, and after providing Ayesh another bathroom

break, the agents adjourned to confer with the prosecutor.

About 15 minutes later, after they relayed the prosecutor’s

answers, Agent Longmire again reviewed the Advice of

Rights form with Ayesh, once more reading and explaining

each right listed. After Ayesh stated that he understood his

rights and initialed each line on the English version of the

form, Agent Longmire read the consent language to Ayesh,

who responded that he wanted to proceed without a lawyer

and signed the form at 1:42 p.m. Prior to signing, Ayesh never

said that he was tired, and never indicated to the agents in any

manner that he was fatigued.

The agents then began interviewing Ayesh. Ayesh paid

complete attention to the agents’ questions, had inflection in

his voice, was animated, and used hand gestures for emphasis.

He answered the questions in complete sentences and sometimes provided substantial detail in his responses. He took

notes during the interview and sometimes enhanced his

answers with illustrations. Ayesh never said that he was

fatigued or needed sleep, and he did not appear either physically or mentally tired. In short, there was nothing to indicate

that he was confused or not thinking clearly. 

When the agents confronted Ayesh with evidence that contradicted his responses, he smiled, laughed, and asked how

they knew the information. Ayesh took additional bathroom

breaks at 4:10 p.m. (for 20 minutes), and at 5:00 p.m. (for 5

minutes). He never requested a break that was not provided,

and the agents offered him food and drink on several occasions. He declined each time, although Agent Longmire

observed Ayesh drinking from a water fountain during one of

8 UNITED STATES v. AYESH
the breaks. The interview concluded between 6:00 and 6:10

p.m. The FBI later inventoried the items in Ayesh’s carry-on

bag. They included six candy bars, a package of cookies, and

two packages of crackers. There also were roasted seeds scattered throughout Ayesh’s bag. In all, the interview lasted less

than six hours.

2.

A statement is involuntary within the meaning of the Due

Process Clause when it is "extracted by . . . threats or violence" or "obtained by . . . direct or implied promises" or "the

exertion of . . . improper influence." Hutton v. Ross, 429 U.S.

28, 30 (1976). The pivotal inquiry is whether the defendant’s

will has been "overborne" or his or her "capacity for selfdetermination critically impaired." United States v. Pelton,

835 F.2d 1067, 1071-72 (4th Cir. 1987) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)).

In determining whether a confession was voluntary, we

must examine the totality of the circumstances, including the

nature of the police activity, as well as the defendant’s situation. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991).

Relevant considerations may include the length and nature of

the questioning, any promises or threats made, and any deprivation of essentials (e.g., food, water, sleep, and bathroom

breaks) imposed upon the defendant. United States v. Van

Metre, 150 F.3d 339, 348 (4th Cir. 1998) (confession voluntary despite 55-hour delay between arrest and arraignment

because defendant was not harmed, threatened, held in seclusion, or deprived of food and rest). Other considerations may

include an assessment of the defendant’s personal attributes,

such as his age, education, intelligence, and mental state. Fulminante, 499 U.S. at 286 n. 2.

We conclude that the district court correctly determined

that Ayesh’s statements "were freely and voluntarily given."

The district court’s factual findings that Ayesh is intelligent,

UNITED STATES v. AYESH 9
highly educated, and of sufficient maturity and experience to

have understood his constitutional rights and communicated

effectively with his questioners are not clearly erroneous

based on the record before us. Indeed, Ayesh is fluent in written and spoken English, he declined the agents’ offer of a

translator, he initialed each of his Miranda rights on the

Advice of Rights form, and he then signed the form indicating

that he understood his rights and that he was waiving them.

Further, as the district court noted, throughout the interview,

Ayesh "asked intelligent questions and spoke confidently on

his own behalf." J.A. 432. Clearly, an interrogation of less

than six hours is not of a "constitutionally offensive duration."

J.A 434. See United States v. Gray, 137 F.3d 765, 768, 772

(4th Cir. 1998) (holding that defendant’s statements were voluntary even though defendant had been handcuffed, left alone

in a police station room for almost two hours, then interviewed for five hours). 

Based on consideration of the totality of the circumstances

surrounding the interview, Ayesh’s will was not overborne

and his capacity for self-determination was not impaired.

Finding no error in the district court’s denial of the motion to

suppress, we affirm.

C.

Finally, Ayesh contends that there was insufficient evidence to sustain his convictions on the two counts of theft of

public money. This court reviews challenges to the sufficiency of the evidence de novo.1 United States v. Penniegraft,

1The government contends that the court should apply a plain error standard, arguing that Ayesh failed to file a motion for acquittal under Fed. R.

Crim. P. 29. Appellee’s Br. 39-40. Close review of the joint appendix

reveals that nine days after verdict, Ayesh filed not one but two motions

for acquittal. See J.A. 10 (Docket Entries 75-76). The district court disposed of such motions by written Order, id. (Docket Entry 93) & 2003,

which incorporated its oral decision on the Rule 29 motions announced

from the bench at the time of sentencing, J.A. 1945-51. 

10 UNITED STATES v. AYESH
641 F.3d 566, 571 (4th Cir. 2011), cert. denied, 132 S. Ct. 564

(2011). To establish a violation of the theft of public money

statute, the government must prove beyond a reasonable

doubt each of the following elements: (1) the defendant stole

or converted something of value for his own use; (2) the thing

of value belonged to the United States; and (3) the defendant

did so knowingly and with the intent to deprive the owner of

the use or benefit of the money. United States v. Rehak, 589

F.3d 965, 973 (8th Cir. 2009), cert. denied, 130 S. Ct. 2130

(2010). Taken in a light most favorable to the government, the

jury had more than sufficient evidence to convict Ayesh, as

review of the trial transcript reveals that the government produced evidence as to each element.

Ayesh challenges the sufficiency of the evidence as to the

third element of the § 641 offenses, which requires that the

government prove that he had the intent to deprive the United

States of the use or benefit of the money. The fact that the

government may have actually received the specified goods

and services does not negate criminal intent.2 On this issue,

2

Indeed, at least four circuits—the First, Fifth, Seventh, and D.C. Circuits—have found that the Government need not prove an actual loss to

establish a violation of § 641. See United States v. Herrera-Martinez, 525

F.3d 60, 62, 64 (1st Cir. 2008) (affirming the conviction of a defendant

who used another person’s name and identifying information to obtain a

federal housing voucher); United States v. Milton, 8 F.3d 39, 41, 44 (D.C.

Cir. 1993) (affirming the convictions of two brothers who helped others

submit false claims for back pay under a settlement agreement between an

employer and the Equal Employment Opportunity Commission); United

States v. Barnes, 761 F.2d 1026, 1027–28, 1033 (5th Cir. 1985) (affirming

the convictions of two defendants who applied for and authorized fraudulent livestock loans from the Farmers Home Administration, even though

the money had actually been used to buy livestock); United States v. Bailey, 734 F.2d 296, 298–301 (7th Cir. 1984) (affirming the conviction of

a defendant attorney who had embezzled portions of loans issued by the

Farmers Home Administration). But see United States v. Collins, 464 F.2d

1163, 1164–65 (9th Cir. 1972) (reversing a conviction under § 641 after

finding that the money that the defendant had stolen by forging and negotiating government-issued checks had belonged to a bank, not the government). 

UNITED STATES v. AYESH 11
the court instructed the jury in the definitional and concluding

instruction, as follows:

you may find the defendant guilty, even if you find

that the government received some service or benefit

as a result of the defendant’s action, or that the

defendant may thereafter have used some portion of

the United States Government funds to pay some

vendor for government services after the United

States Government funds were deposited in his

wife’s bank account in Jordan.

J.A. 1781. The government presented evidence that Ayesh

knew at the time he committed such acts that it was illegal to

keep any of the funds for himself. J.A. 1633. The evidence

was more than sufficient for the jury to find that Ayesh

intended to deprive the United States of the use and benefit

of the funds wired to his wife’s bank account. 

We find that sufficient evidence was presented to the jury

as to each element of the charged § 641 offenses to sustain the

verdict, and, accordingly, we affirm the district court’s denial

of Ayesh’s Rule 29 motions. 

III.

In sum, we affirm the District Court’s judgment in its

entirety.

AFFIRMED

12 UNITED STATES v. AYESH