UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. AHMED SALIM FARAJ ABU KHATALLAH, also known as “Ahmed Abu Khatallah,” also known as “Ahmed Mukatallah,” also known as “Ahmed Bukatallah,” also known as “Sheik,” Defendant. Case No. 14-cr-00141 (CRC)

MEMORANDUM OPINION Ahmed Salim Faraj Abu Khatalla h was convicted of four charges r elated to the 2012 attack on a United States dipl omatic compound in Benghazi, Liby a. He has moved for a judgment of acquittal on one of t hese offenses: Count Eighteen of the superseding indictment, which charged a violation of 18 U.S.C. § 924(c). Abu Khatallah claims that his conviction cannot stand in light of the Supr eme Court’s recent decision inSessions v. Dimaya, 138 S. Ct. 1204 (2018). The Court will deny his motion.

I. Background Abu Khatallah was charged with e ighteen offenses related to the 2012 attacks in Benghazi. After a seven-week tri al, the jury convicted him on four of the charges and acquitted him on all others. 1 One of his convictions was for using or carrying a semiautoma tic assault

1 The trial is summarized in this Court’s recent opinion denying Abu Khatallah’s motion for a mistrial. See Memo. O p. at 1–11, ECF No. 528 (June 15, 2 018).2 weapon “during and in relation to a ny crime of violence,” in vi olation of 18 U.S.C. § 924(c)(1)(A). 2 Section 924(c) defines a “cri me of violence” as any felony t hat: (A) has as an element the use, attempted use, or threatened us e of physical force against the person or p roperty of another, or (B) that by its natu re, involves a substa ntial risk that physi cal force against the person or property of another may be used in the course of comm itting the offense. Id. § 924(c)(3). Subsection (A) of t his definition is commonly referred to as the “elements clause” (or sometimes the “for ce clause”). Subsection (B) is k nown as the “residual clause.” The jury was not required to speci fy which offenses it viewed a s crimes of violence supporting Abu Khatallah’s § 924(c) conviction. But it convict ed him on three counts that, according to the jury instructions, qualified:

 Count 1: Providing material support to terrorists (a violation of 18 U.S.C. § 2339A carrying a maximum 15- year prison sentence);

 Count 2: Conspiring to do the same (also a violation of 18 U.S. C. § 2339A carrying a maximum 15-year sentence); and

 Count 16: Intentionally injuring a building within the special and maritime jurisdiction of the United States—namely, the U.S. Special Miss ion— where that building was a dwelling or where the life of a perso n was placed in jeopardy (a violation of 18 U.S.C. § 1363 carrying a maximum 20-year sentence) Abu Khatallah moved for a judgmen t of acquittal at the close of the government’s case and again after his case. Trial Tr. 5421, 5537–38 (Nov. 13, 20 17 a.m.). The Court reserved

2 Section 924(c) imposes a minimum five-year sentence on a defen dant who “during and in relation to any crime of viol ence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 1 8 U.S.C. § 924(c)(1)(A). The minimum penalty is steeper wh en the jury, as it did here, finds that the firearm is a “semiautomatic assault weapon.” Id. § 924(c)(1)(B)(i).3 judgment on the motion and submitted the case to the jury on No vember 20, 2017. On November 28, the jury convicted Ab u Khatallah on the four charg es described above. He now renews his motion 3 with respect to his § 924(c) conviction in light of the Supreme Court’s April 2018 deci sion in Sessions v. Dimaya, 138 S. Ct. 1204. Dimaya confronted a challenge to a di fferent provision of the federal criminal code, 18 U.S.C. § 16, that defines “crime of violence” identically to § 924(c). The chall engers there argued that the provision’s residual clause was unconstitutionally vague—that i s, it did not provide fair notice of the conduct it prohibits and t hus could not be applied without violating the Due Process Clause of the Fifth Amendment. Id. at 1212. The Supreme Court agreed . See id. at 1216. Abu Khatallah thus contends tha t, for the reasons stated by the Supreme Court in Dimaya, the same residual clau se in § 924(c) is also void for v agueness. And he claims that, without the residual clause , his conviction unde r § 924(c) cann ot stand. In his view, while his other convictions may have qualif ied as crimes of violence unde r the residual clause, none of them fall within the elements clause because they do not have “ as an element the use, attempted use, or threatened use of physic al force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A).

3 Federal Rule of Criminal Pro cedure 29(c) provid es that a motio n for judgment of acquittal or renewal of such a m otion must be made within fourt een days of a jury verdict. But while Abu Khatallah’s filing here is in styled as a renewed mot ion and was not filed within fourteen days of the jury’s ve rdict, the filing is better under stood as a memorandum supporting his timely renewed motion for j udgment of acquittal. Or, to th e extent that it is an untimely renewal, the Court will nonetheless consider it because it was filed immediately after an intervening change in law th at could render a conviction uncons titutional—a textbook case of “excusable neglect” justifyi ng a failure to file it earlier. S ee Fed R. Crim. P. 45(b)(1)(B); id. advisory committee note to 2005 amendments.4 II. Analysis A. Abu Khatallah Has Not Waive d the Argument that his § 924(c) Conviction Is Invalid At the threshold, the government c ontends that Abu Khatallah wa ived any argument that the crimes charged in the indi ctment are not crimes of violence for purposes of § 924(c). It points to two missed opportunities for Abu Khatallah to have ra ised this argument, each of which it believes constitutes waiver. First, the government claims that Abu Khatallah should have mov ed to dismiss the indictment’s § 924(c) count as fa iling to charge an offense. See Fed. R. Crim. P. 12(b)(3)(B)(v); United States v. Eshetu, 863 F.3d 946, 952 (D.C. Cir. 2017) (ex plaining that a challenge to the constitutionality of a crimina l statute “undoubtedly qualifies” as a proper ground for a motion to dismiss for failure to charge an offense under Rule 12). This argument can be quickly dispensed with. While the Federal Rules of Criminal Procedure do provide for waiver of arguments not timely raised in pretrial motions , the Rules allow courts to co nsider any defense or objection “if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). Good cause exists here. The deadline for pretrial motions in thi s case lapsed in August 2015. That predated Dimaya by two-and-a-half years. The government suggests th at the Supreme Court decision on which Dimaya relied— Johnson v. United States, 135 S. Ct. 2551 (2015)—provided Abu K hatallah with a basis for challenging his § 924(c) charge be fore trial. Maybe so in the abstract. But Johnson dealt with statutory text different from § 924(c)’s and, under binding D.C . Circuit case law at the time, § 924(c)’s residual clause was constitutionally sound. See, e. g., United States v. Kennedy, 133 F.3d 53, 56–58 (D.C. Cir. 1998) (applying residual clause). Ab u Khatallah’s argument to the contrary would have almost certa inly fallen on d eaf ears, and t hus good cause exists for his failure to raise that argument . Fed. R. Crim. P. 12 advisory c ommittee note to 2014 amendments5 (describing good cause as “a flexib le standard that requires co nsideration of all interests in the particular case”). Alternatively, the government cla ims that Abu Khatallah waived his “crime of violence” argument by not objecting to the jur y instruction that “[t]he c rimes charged in Counts One through Seventeen are crimes of violence.” The Court disagrees that this constituted waiver. The Court delivered jury instru ctions (1) shortly after the D.C . Circuit had reaffirmed the constitutionality of § 924(c)’s res idual clause following the S upreme Court’s decision in Johnson, see Eshetu, 863 F.3d at 955, and (2) before the Suprem e Court in Dimaya called that ruling into questi on. Abu Khatallah coul d not have credibly ar gued that the jury instruction misstated current law, and surel y his failure to raise an argum ent anticipating the Supreme Court’s decision to change the la w does not waive an argument r elying on that change. Rather, Abu Khatallah correctly concede d that the charged crimes qualif ied as crimes of violence under the § 924(c)’s residual clause under then-binding law. And, in light of Dimaya, he is now able to argue for the first time that § 924(c)’s residual clause is unc onstitutionally vague and that his conviction cannot s tand without it. B. Abu Khatallah’s Convict ion Under 18 U.S.C. § 1363 Is a Crim e of Violence Under § 924(c)’s Elements Clause That leads us to the first ques tion on the merits: Does the Sup reme Court’s invalidation of § 16’s residual clause in Dimaya mean that § 924(c)’s residual clause is also unconstitutionally vague? At first glance, the a nswer would appear to be an obvio us “yes.” The texts of the two residual clauses are identical , and both are components of crim inal statutes that define the term6 “crime of violence.” But the ma tter is not settled in the D.C. Circuit. 4 In any case, this Court need not conclusively settle it because it ultimately concludes that Abu Khatallah’s conviction under § 924(c) can stand even under § 924(c)’s elements clause. To determine whether a particular predicate crime is a “crime o f violence” under § 924(c)’s elements clause, the C ourt must use the “categorical approach.” See Eshetu, 863 F.3d at 955. Under the categorical appr oach, the question is not wh ether Abu Khatallah in fact used, attempted, or threatened physical force against the person or p roperty of another when committing the underlying offenses. See Mathis v. United State s, 136 S. Ct. 2243, 2248 (2016). Rather, the Court must look only to t he elements of the crime—“ the things the ‘prosecution must prove to sustain a conviction’” and “what the jury must find be yond a reasonable doubt”—and decide whether those elements necessarily involved the requisite us e, attempted use, or threatened use of physical force . Id. (quoting Black’s Law Dic tionary 634 (10th ed. 2014)). In other words, the question is wh ether “the least of the acts criminalized” by the statute involves such force. Moncrieffe v. Holder, 569 U.S. 184, 191 ( 2013) (internal quotation omitted). Thus, one way for a defendant to establish that a cr ime does not fall within the

4 The D.C. Circuit has directed s upplemental briefing regarding the effect of Dimaya on its 2017 decision upholding § 924(c)’s residual clause against constitutional challenge. Order, United States v. Lovo, No. 15-3023 ( D.C. Cir. May 21, 2018); se e also United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018) (hol ding § 924(c)(3)(B) unco nstitutionally vague in light of Dimaya); Davis v. United Sta tes, No. 16-8997, 86 U.S.L.W. 3573 (U.S. May 14, 2018) (summarily granting petition for certiorari, vacating decision, and remanding to Fifth Circuit for reevaluation, in light of Dimay a, of decision that applied § 92 4(c)(3)(B)). In its supplemental brief there (and before this C ourt) the government has not conc eded that Dimaya renders § 924(c)(3)(B) void for vagueness; rat her, it argues that court s should abandon the categorical approach when applying the resi dual clause and should instead r equire a jury to determine whether the defendant’s particu lar conduct gave rise to a subst antial risk that force would be used. See Corr. Supp. Br. of Appellee, Lovo, No. 15-3023 (D.C. Cir. June 6, 2018).7 elements clause is to show t hat a person could be convicted of the crime despite not using, attempting, or threatening force against the person or property of another. But to succeed on that sort of argument, a defe ndant must do more than hypothesize conduct that would support a conviction. Rather, the defendant “must at least point to his own case or other cases in which the . . . courts in fact did apply t he statute in the . . . manner for which he argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) ; see also Moncrieffe, 569 U.S. at 191 (“[F]ocus on the minimum conduct criminalized by the [relevant] statute is n ot an invitation to apply ‘legal imagination’ to the . . . offense.” (quoting Duenas-Alvarez, 54 9 U.S. at 193)). Applying these standards, the Cour t finds that Abu Khatallah’s § 924(c) conviction can stand because one of his other offenses of conviction, 18 U.S.C . § 1363, categorically involves “the use, attempted use, or thr eatened use of physical force ag ainst the person or property of another.” Section 1363 provides that: Whoever, within the special maritime and territorial jurisdicti on of the United States, willfully and malicious ly destroys or injures any struc ture, conveyance, or other real or personal prope rty, or attempts or conspires to do such an act, shall be fined under this title or imprisoned not more than fiv e years, or both, and if the building be a dwelling, or the life of any person be placed in jeopardy, shall be fined under this title or imprisoned not more than twe nty years, or both. So, at a minimum, to be convict ed under § 1363 a defendant musthave intentionally injured federal property, or have a ttempted or conspired to do so. The question is whether a defendant’s injuring, attempting to injure, or conspiring to injure federal property necessari ly means that he used, attempted, or threatened f orce against that property. The short answer is yes. Inju ring federal property categorical ly requires a use of force against the property of another . Likewise, an attempt to injur e property categorically requires an8 attempted use of force agains t the property of another. 5 Abu Khatallah contends that, for two reasons, the issue is much more complicated. The Court disagre es with both contentions. 1. “[T]he use, attempted use, or th reatened use of physical force . . .” Abu Khatallah’s first argument relies on the Supreme Court’s de cision in Johnson v. United States, 559 U.S. 133 (2010), wh ich interpreted the term “physical force” in a statute with

5 Abu Khatallah does not contend tha t the fact that he could hav e been convicted under § 1363 for conspiring to injure property changes matte rs. Even if the argument were not forfeited, it would not alter the Court’s analysis. The D.C. C ircuit has held that so long as the “object” of the conspiracy— i.e. , its unlawful agreed-upon goal— fits within § 924(c)’s definiti on of a crime of violence, then t he conspiracy crime also qualifie s as a crime of violence. That is true even if no violent overt ac t is necessary to support a con spiracy conviction. United States v. Kennedy, 133 F.3d 53, 57–58 (D.C. Cir. 1998); see also Eshetu, 863 F.3d at 961 (Millett, J., concurring in part and concurring in the judgment) (“Under this court’s precedent, by which this panel is bound, in a Hobbs Act c onspiracy, we may look to the o bject of the conspiracy—either robbery or extortion—to determine if the conspiracy itself is acrime of violence.”). Admittedly, the D.C. Circuit has taken this approach only impli citly. See Kennedy, 133 F.3d at 57–58. And it is not beyond doubtthat, if confronted with the issue again, the Circuit would continue to focus on the obj ect of the conspiracy—as oppo sed to the minimum conduct required to be a conspirator—when evaluating crimes under the elements clause , as opposed to under the residual clause. The obj ect of the conspiracy is cle arly relevant under the residual clause: an agreement to commit a crime that (if completed) invo lves the use, attempt, or threat of force inherently creates a “substantial risk” that force will b e used. See United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996). But as the majority of courts to address the issue have recognized, a person can agree to use force—and engage in an ov ert act in furtherance of that agreement—without ever actual ly using, attempting, or threateni ng force. See United States v. Gore, 636 F.3d 728, 731 (5th Cir. 2011); United States v. White , 571 F.3d 365, 369 (4th Cir. 2009); United States v. F ell, 511 F.3d 1035, 1037 (10th Cir. 20 07); United States v. Juvenile Male, 923 F.2d 614, 618 & n.7 (8th Cir . 1991). Indeed, it appe ars that only one court of appeals avowedly focuses on the object of t he conspiracy when evaluatin g crimes under the elements clause, and it does so based on a technical understanding of a criminal conspiracy as “subsum[ing] the elements” of t he conspiracy’s object. United States v. Preston, 910 F.2d 81, 86 (3d Cir. 1990). Nevertheless, Abu Khatallah has not argued tha t the possibilit y of conviction based on conspiracy renders § 1363 out side the scope of the ele ments clause. And even if he had, this Court is bound by the D.C . Circuit’s implicit holding on the issue—a holding recently endorsed in a concurrence even a s to the elements clause, see E shetu, 863 F.3d at 961 (Millett, J., concurring in part and conc urring in the judgment).9 some similarities to § 924(c). S pecifically, Johnson dealt wit h the Armed Career Criminal Act (“ACCA”), which imposes pena lties on gun-possession defendants who have multiple convictions for a “violent fe lony.” 18 U.S.C. § 924(e)(1). AC CA’s definition of violent felony, like § 924(c)’s definition of a cri me of violence, includes a c lause that covers crimes with “an element the use, attempted us e, or threatened use of physical f orce against the person of another.” Id. § 924(e)(2)(B)(i ). (Unlike § 924(c), ACCA’s ele ments clause does not cover crimes against prope rty. See id.) The Supreme Court in Johnson refus ed to read ACCA’s term “physi cal force” as capturing “even the slightes t offensive touching”— i.e. , the sort of force that would support a common law battery convicti on. 559 U.S. at 139. Rather, “in t he context of a statutory definition of ‘ violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140 (third emphasis added). With Johnson’s definition in hand, 6 Abu Khatallah contends that a conviction under § 1363 does not categorically requi re the use of “violent” phys ical force against property, and thus does not fall within the § 924( c)’s elements clause. He c ites decisions from other circuits upholding convictions under § 1363 ba sed on facts that, in his view, involved nonviolent

6 Johnson’s construction of the t erm “physical force” in ACCA ap plies to that term as it appears in § 924(c)(3)(A). Lik e ACCA, § 924(c) defines crimes that Congress has deemed violent; Johnson’s reasons for requiring violent force are thus fully applicable to § 924(c). And the sole textual difference betw een the text of the two element s clauses is that § 924(c)’s, unlike ACCA’s, encompasses force admini stered to property as well as p eople. It follows that, to qualify as a crime of violence under § 924(c)(3)(A)’s elements clause, an offense must categorically require the use, a ttempted use, or threatened use of “force capable of causing physical pain or injury to a pers on or injury to property.” Se e United States v. Hill, 832 F.3d 135, 143–44 (2d Cir. 2016); see also Atla ntic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932) (“Undoubtedly, there is a natural presumption that i dentical words used in different parts of the same act are inte nded to have the same meaning.”).10 exertions of force. See, e.g., United States v. Nerius, 824 F. 3d 29, 30 (3d Cir. 2016) (conviction for breaking the sprinkler head i n an inmate’s cell, causing th e cell to flood); United States v. Cobble, No. 06-cr-93 (W.D. Ky. 200 7) (conviction for pouring ta r on the steps of a federal courthouse). But these cases do not show tha t § 1363 can be violated using l ess force than that contemplated in Johnson. The r elevant question under Johnson i s not whether the Court would describe all § 1363 convictions as “violent” in an intuitive se nse. Rather, Johnson’s definition of physical force simply requires th at all of the prohibited acts involve “force capable of causing physical injury.” 559 U.S. at 140. T arring a courthouse or br eaking a sprinkler, while not particularly brutal, each require that level of force against p roperty. United States v. Hill, 832 F.3d 135, 142 (2d Cir. 2016) (explaining that Johnson “did not . . . require that a particular quantum of force be employed or t hreatened to satisfy the physi cal force requirement”); see also United States v. Castleman, 134 S. Ct. 1405, 1416–17 (2014) (Sc alia, J., concurring in part and concurring in the judgment) (“[I] t is impossible to cause bodil y injury without using force ‘capable of’ producing that result.”) . Neither act is the sort of de minimis intrusion—like a trespassory but otherw ise harmless touch—that the Supreme Courtin Johnson viewed as outside the scope of ACCA’s elements clause. 7 Cf. Johnson, 559 U.S. at 138 (st ate battery crime committable through “ any intentional physical contact , no matter how slight,” did not categorically involve the use of physical force (internal quota tion omitted)).

7 For example, a defendant who ent ered a secured federal buildin g at night and placed his hand on the wall may not have used “ violent force” against prop erty. But the Court does not believe that defendant would have injured that property so as to fall within § 1363.11 Abu Khatallah also pursues a relat ed argument: that a crime req uiring proof of injury to a structure does not necessarily i mply that the defendant used physical force capable of causing that injury. To this end, he c ites decisions holding that stat utes criminalizing the causation of bodily injury—without any expre ss requirement of proving a use, attempt, or threat of force against a person—are not crimes of violence under the elements clause. The Second Circuit, for example, held that third-degree assault under Connecticut law d id not fall within the elements clause because a defendant who injures his victim “by guile, de ception, or even deliberate omission” could be convicted of assault. Chrzanoski v. Ashcrof t, 327 F.3d 188, 195–96 (2d Cir. 2003). But these cases do not help Abu Kha tallah. For one, while it m ight be true in the abstract that injury by deception or omission does not require “physical force,” he cites no authority suggesting that a defendant c ould be convicted for injuring property using those sorts of means. Fanciful hypothetical violations of § 1363 resting on deception or inaction—whatever those might be 8 —are insufficient to show that the crime falls outside § 924(c) ’s elements clause. See
Duenas

‐ Alvarez, 549 U.S. at 193. And to the e xtent that some courts h ave held that “indirect” applications of physical force fa ll outside the elements clause , a recent D.C. Circuit decision expressly forecloses that argum ent. United States v. Haight, N o. 16-3123 (D.C. Cir. June 22, 2018) (slip op. at 13–14) (rely ing on Castleman, 134 S. Ct. 140 5, for the principle that “so-called indirect violent force is still violent force”). Thus, a crime like § 1363—which has as an element

8 Tricking someone into pulling a fire alarm and thereby causing sprinklers to flood a post office?12 the intentional injury of propert y—categorically requires that the defendant use force capable of causing injury to that property. 2. “[A]gainst the . . . property of another.” Abu Khatallah raises one additi onal argument for the first time in his reply brief. 9 He begins with the fact that § 924(c )(3)(A) covers crimes only if they categorically involve force against the “property of another .” Based on that language, at leas t two courts of appeals have held that arson statu tes do not qualify as crimes of violence w hen defendants could be convicted under those statutes for burning their own property. See Unite d States v. Salas, 889 F.3d 681, 683–84 (10th Cir. 2018) (federal arso n statute not a crime of v iolence under § 924(c)); Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th C ir. 2007) (California pr operty-burning statute not a crime of violence under 18 U.S.C . § 16); see also Torres v. Lyn ch, 136 S. Ct. 1619, 1629 (2016) (agreeing, in dictum, that the “crime of violence” definition d oes “not reach arson in the many States defining that crime to i nclude the destruction of one’s own property”). Drawing on these cases, Abu Khatall ah contends that a person co uld violate § 1363 by injuring or destroying his own property, and for that reason the crime does not categoricallyfall within § 924(c)’s definition of a “crime of violence.” Section1363, he explains, requires only that the damaged property be “within the special maritime and t erritorial juris diction of the United States.” This term i s defined in 18 U.S.C. § 7(9) to co ver, as relevant here:

9 Courts often treat arguments f irst raised on reply as forfeite d. Taitz v. Obama, 754 F. Supp. 2d 57, 61–62 (D.D.C. 2010). Moreover, this particular ar gument would have better been raised before trial; both the el ements clause and the residual clause require that the property be “of another,” and thus Abu Khata llah could have contended befor e Dimaya that § 1363 does not qualify as a crime of violence unde r either clause. The Court will nevertheless confront Abu Khatallah’s argument because the government had an adequate opp ortunity to respond to it at the Court’s June 18, 2018 hearing.13 (A) the premises of United States diplomatic, consular, milita ry or other United States Government missions or entities in foreign States, inclu ding the buildings, parts of buildings, and land appurtenant or ancillar y thereto or used for purposes of those missions or entities, irrespective of ownership , and (B) residences in foreign States and the land appurtenant or a ncillary thereto, irrespective of ownership , used for purposes of those missions or entities or used by United States personnel assigned to those missions or e ntities. 18 U.S.C. § 7(9) (emphasis added). 10 Abu Khatallah seizes on the langu age “irrespective of ownership ” and contends that § 1363 therefore allows for the pos sibility of conviction for d estruction of one’s own property. In his view, a defendant could ow n a foreign residence that is “used for purposes” of a U.S. consulate, 18 U.S.C. § 7(9)(B), a nd then intentionally damage t hat structure in violation of § 1363. In an effort to show that this possibility is more tha n theoretical, Abu K hatallah at the hearing introduced an exhibit s howing that the Mission faciliti es were, in fact, leased to the United States by private owners . Def.’s Ex. S-12. He claims t hat, if either landowner had injured Mission property, he coul d have been convicted under § 1363 without having used force against the “property of anothe r,” 18 U.S.C. § 92 4(c)(3)(A).

10 This definitional statute incl udes several other subsections u nder which property can fall within federal territori al jurisdiction, see id. § 7, but the above bases were the only ones on which the jury here was instructe d, see Jury Instructions at 27 –28; see also United States v. Abu Khatallah, 168 F. Supp. 3d 210, 215 (D.D. C. 2016) (in denying p retrial motion to dismiss Counts 16 and 17, explaining that the government at trial would need t o prove that the Mission “fell within a certain class of buildi ngs, 18 U.S.C. 7(9)(A)–(B)”). So to convict Abu Khatallah for violating § 1363, the jury necessarily found that the Mission f ell within this limited part of the federal-territorial-j urisdiction statute— i.e. , within subsection 9. Thus , in analyzing whether § 1363 falls outside the crime-o f-violence definition on the gr ound that a defendant could destroy his own property, the Court is permitted to use the “modified c ategorical approach”: it may ignore the possibility that other subsections of § 7’s definition of f ederal territorial jurisdic tion supported Abu Khatallah’s conviction. See Descamps, 570 U.S. 2 54, 261–62 (2013). The sole question is therefore whether a defendant who damaged property falling within 18 U.S.C. § 7(9), in violation of § 1363, categorica lly used physical force again st the “property of another.”14 The Court accepts that a defendant could violate § 1363 by inju ring a structure that he

owns . But it does not follow that a defendant can violate § 1363 w ithout injuring the “property of another.” While there is s cant authority on the meaning of that phrase in § 924(c), its legislative history suggests a broad understanding—one that cov ers all “property in which a person or government has an inter est upon which the actor is no t privileged to infringe without consent, whether or not the act or also has an interest in the p roperty.” S. Rep. No. 97-307, at
711. 11 A similarly broad definition made its way into the Model Pena l Code, which explains in defining arson that “[p]roperty is that of another . . . if any one other than the actor has a possessory or proprietary inter est therein.” Model Pen. Code § 220.1(4). And in states whose arson statutes retain the comm on-law requirement that the burne d property be the property “of another,” the requirement is ge nerally met if the destroyed pro perty contains “ any ” third-party interest, including a lease, State v. Bollinger, 352 P.3d 1003, 1008 (Kans. 2015) (emphasis added), and in some states even a mortgage, see, e.g., People v . Ross, 244 N.E.2d 608, 616 (Ill. 1968); see also 3 Wayne R. LaFave , Substantive Criminal Law § 2 1.3(d) (3d ed. 2017).

11 The legislative history behi nd § 924(c)’s “crime of violence” definition is so complicated that it nearly defi es summarization, but here goes: The just-quoted language was proposed as a general definiti on of the term “property of anoth er” to appear in the Criminal Code Reform Act of 1981, S. 1630. See Sen. Rep. No. 97-307. That 1 981 bill also proposed a definition of “crime of violence” that would apply throughout t he criminal code. Id. at 457–58. The 1981 bill was never enacted, but the Senate report accompan ying a later bill—known as the Comprehensive Crime Control Ac t of 1984—expressly indicates an intent to adopt the earlier bill’s “crime of violence” definition. See Sen. Rep. No. 98-22 5, at 307. The Comprehensive Crime Control Act was ultimately enacted and created the “crime of violence” definition that applies to § 924(c). S ee Pub. L. No. 98-473, §§ 1001, 1005(a) (1984). And while the Comprehensive Crime Control Ac t did not include a definition of “property of another,” it seems sensible to assume that it contem plated at least a similar defi nition of the term as the earlier bill from which it drew.15 Moreover, the context of the phr ase “property of another” suppo rts, if not demands , that the term carry a broad meaning—one that captures offenses even if a defendant could be convicted for harming property he owns. Remember that § 924(c) (3)(A) defines a “crime of violence.” Congress understand ably wanted to exclude offenses from this definition that could be committed through pure self-harm; burning one’s own property might be dangerous, but it is not categorically violent. But reading “property of another” r estrictively would go a step further and, taken to its logical conc lusion, would lead to a highly il logical result: A tenant who burns his rented rowhouse would have committed a crime of violence. A landlord who burns the rowhouse he rents out would not. Those offenses may be differe nt in some respects, but they are equally violent . Why would Congress intend § 924( c) to distinguish between th em? In the Court’s view, then, § 924(c) ’s reference to “property of another” means property in which another party (other than t he defendant) has a proprietary or possessory interest. That reading is consistent with the context, history, and purpose of the statutory phrase, as well as with the meaning given to it by the Model Penal Code and numero us states. Indeed, the Court is aware of no place where the phras e is used in the way Abu Khata llah suggests— i.e. , that a defendant per se cannot damage the “property of a nother” if he owns the propert y. A statute is thus excludable from § 924(c) on the basis of owne rship only if it could be violated by an owner who damage s property in which he has exclusive interest. Under that reading, the only way Abu Khata llah could succeed on his argume nt is by showing that § 1363 could criminalize an owner’s dama ge of wholly private property— that is, property in which another party does not have a ri ght of control or possession. He has made no such showing. Rather, for property to fall within the special maritime and te rritorial jurisdiction of the United States under 18 U.S.C. § 7(9)—and t hus to sustain conviction un der § 1363—it appears that the16 United States must hold some proprietary or possessory inter est in the property. In other words, § 7(9) seems to require that the government have some right of possession or control over the property—akin to the lease in this case. See, e.g., United Sta tes v. Passaro, 577 F.3d 207, 216 (4th Cir. 2009) (holding that Afghan military base fell within § 7(9) where the “United States had retained control for n early a year and a half . . . , maint aining a meaningful permanent presence to conduct significant military operations, which the Afghan government sanctioned”). True, the text of § 7(9)(B) could be read to cover residences privately and exclusively owned by “United States personnel” assigned to diplomatic missi ons. If those personnel destroyed houses that they exclusively owned, they admittedly w ould not have destroyed the “property of another” even under th e Court’s broad definition o f that term. But even accepting the “realisti c probability” of that remote h ypothetical, Duenas

‐ Alvarez, 549 U.S. at 193, the Cour t doubts that § 7(9) could be stretched to cover it. These doubts are rooted partially in the legislative history of that subsection. Subsection 9 was added to the definition of “special maritime and territorial jurisdic tion of the United States” fairly recently as part of the USA P ATRIOT Act, Pub. L. No. 107-56, 11 5 Stat. 272 (2001). In the view of the House committee repor t, the language added in subse ction 9 was aimed at a narrow problem—it sought to “make it clear that embassies and embassy housing of the United States in foreign states are included in t he special maritime and territo rial jurisdiction of the United States.” H.R. Rep. No. 107-236, pt . 1, at 73–75. The report n oted that in recent years the issue had divided courts and identifie d a prior Fourth Circuit decisi on that, in the committee’s view, correctly resolved it. See id. T hat case, United States v. Er dos, 474 F.2d 157 (4th Cir. 1973), held that a U.S. embassy abroad f ell within federal-territorial jurisdiction because it was “reserved or acquired for the us e of the United States, and und er the exclusive or concurrent17 jurisdiction thereof,” id. at 159 (quoting 18 U.S.C. § 7(3)). In the Fourth Circuit’s view, “[t]he test, as to property within or w ithout the United States, is on e of practical usage and dominion exercised over the embassy or othe r federal establishment by th e United States government.” Id. The U.S. Embassy in Equatorial G uinea met Erdos’s test notwiths tanding the fact that the United States was not its fee-simp le owner, see id. at 159–60, but the Fourth Circuit nowhere contemplated that federal-terr itorial jurisdiction could extend to wholly private property. Indeed, another leading case—one rely ing on Erdos—held that § 7(3) cove red a private building rented by the U.S. embassy for the us e of its employees, but in doing so was careful to note that the building “was not [the employee’s] private residence.” United States v. Corey, 232 F.3d 1166, 1177 (9th Cir. 2000). To be sure, § 7(9) did not expr essly codify t he precise bounds of Erdos. But reading § 7(9) to cover residences in w hich the United States has no possessory or propr ietary interest would take statutory text writt en to solve a narrow problem (co urts treating U.S. embassy property as outside U.S. territo rial jurisdiction) and stretch it to its breaking point (to cover wholly private residences inha bited by U.S. personnel abroad). In fact, it is unclear that such a reading would comport with international law, and “an act of [C ]ongress ought never to be construed to violate the law of nations, if any other possible construction remains.’” Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ( Marshall, C.J.)). 12

12 “International law imposes lim its on a state’s ‘j urisdiction t o prescribe,’ that is, its ability to render its law appli cable to persons or activities o utside its borders.” United States v. Rezaq, 134 F.3d 1121, 1133 (D.C. Cir. 1998); see Restatement (T hird) of Foreign Relations Law §§ 401–402 (1987). Section 7(9) in typical cases will satisfy international-law principles because diplomatic property purchased or leased by the United S tates is commonly understood to be within at least the “concurre nt” territorial jurisdiction of the United States and therefore within its power to prescr ibe. See Corey, 232 F.3d at 1178 (as king, with respect to property leased by embassy abroad, “whether the United States enjoys suc h control over the area that the18 Section 1363 is therefore distingui shable from the statutes tha t courts have held fall outside of § 924(c)’s definition of “crime of violence.” The l atter statutes have no requirement that the property be that “of another” and thus could readily b e used to prosecute individuals who burn their own property (say, for insurance money). See, e.g., 18 U.S.C. § 844(i) (covering “any building, vehicle, or other real or personal property used in i nterstate or foreign commerce”); Cal. Penal Code § 452(c) (coveri ng any “structure” or “forest l and”). By contrast, to the Court’s knowledge § 1363 has never been applied to a defendant who has destroyed property in which he alone has exclusive rights and, a s just explained, the Court se riously doubts that such a prosecution would even be theoretically possible given the text and history of 18 U.S.C. § 7(9). At the very least, there is no “realistic probability” that § 1 363 will ever be applied to a defendant who damages property over which he has sole and exclu sive ownership. Duenas

‐ Alvarez, 549 U.S. at 193; see al so Moncrieffe, 569 U.S. at 191 (“focus on the minimum conduct criminalized by the . . . statute i s not an invitation to apply ‘legal imagination’ to the . . .

law should constructively regard it as United States territory” ); Restatement, supra , § 402(1)(a). But if read to cover wholly priv ate property—property over whic h the United States exerted no modicum of control—there would ne ed to be some other basis supp orting extension of U.S. jurisdiction. That’s not a problem when the defendant is a U.S . national. Id. § 402(2). By its terms, however, § 7(9) applies not just where the defendant is a U.S. national, but also where the victim is a U.S. national. And at least for run-of-the-mill crimes l ike § 1363, the nationality of the victim would not seem suffici ent to support U.S. jurisdicti on consistent with the law of nations. Cf. Rezaq, 134 F.3d at 1133 (citing “passive personal ity principle” of jurisdiction over crimes against a state’s nati onals “by reason of their national ity,” but noting that principle “has not been generally accepted for or dinary torts or crimes”); Res tatement, supra, § 402 cmt. f (explaining “protective principl e of jurisdiction” over “offens es directed against the security of the state” but citing “espionag e” and “counterfeiting” as parad igmatic examples). So under the theory that statutes should be r ead so as to comply with the la w of nations, § 7(9) should be interpreted to cover only property that is within U.S. territor y. The Court does not see how private residences in which the United States has no proprietar y or possessory interest could be considered within its “territory ,” even if that term is given abroad, functional definition.19 offense”); United States v. Redrick, 841 F.3d 478, 484 (D.C. Ci r. 2016) (rejecting hypotheticals as “too farfetched t o give us pause”).
* * * In short, Abu Khatallah’s c onviction under 18 U.S.C. § 1363 nec essarily involved the use, attempted use, or threaten ed use of physical force against the property of another. It therefore qualifies as a crime of violence under 18 U.S.C. § 92 4(c)(3)(A). With no basis for overturning the jury’s verdict on Count Eighteen, the Court wil l deny Abu Khatallah’s renewed motion for judgment of acquittal (ECF No. 507). A separate ord er accompanies this memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge Date: June 26, 2018