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92 F. Supp. 2d 189;
2000 U.S. Dist. LEXIS 3014 UNITED STATES OF
AMERICA, - v. - USAMA BIN LADEN, a/k/a “Usamah Bin-Muhammad
Bin-Ladin,” a/k/a “Shaykh Usamah Bin-Ladin,” a/k/a
“Abu Abdullah,” a/k/a “Mujahid Shaykh,”
a/k/a “Hajj,” a/k/a “al Qaqa,” a/k/a
“the Director,” a/k/a “the Supervisor,”
MUHAMMAD ATEF, a/k/a “Abu Hafs,” a/k/a “Abu Hafs el
Masry,” a/k/a “Abu Hafs el Masry el Khabir,” a/k/a
“Taysir,” a/k/a “Sheikh Taysir Abdullah,”
a/k/a “Abu Fatimah,” AYMAN AL ZAWAHIRI, a/k/a “Abdel
Muaz,” a/k/a “Dr. Ayman al Zawahiri,” a/k/a
“the Doctor,” MAMDOUH MAHMUD SALIM, a/k/a “Abu Hajer
al Iraqi,” a/k/a “Abu Hajer,” KHALED AL FAWWAZ,
a/k/a “Khaled Abdul Rahman Hamad al Fawwaz,” a/k/a
“Abu Omar,” a/k/a “Hamad,” ALI MOHAMED,
a/k/a “Ali Abdelseoud Mohamed,” a/k/a “Abu
Omar,” a/k/a “Omar,” a/k/a
“Haydara,” a/k/a “Taymour Ali Nasser,”
a/k/a “Ahmed Bahaa Eldin Mohamed Adam,” WADIH EL HAGE, a/k/a
“Abdus Sabbur,” a/k/a “Abd al Sabbur,”
a/k/a “Wadia,” a/k/a “Abu Abdullah al
Lubnani,” a/k/a “Norman,” a/k/a
“Wa’da Norman,” FAZUL ABDULLAH MOHAMMED, a/k/a
“Harun,” a/k/a “Harun Fazhl,” a/k/a
“Fazhl Abdullah,” a/k/a “Fazhl Khan,”
MOHAMED SADEEK ODEH, a/k/a “Abu Moath,” a/k/a
“Noureldine,” a/k/a “Marwan,” a/k/a
“Hydar,” a/k/a “Abdullbast Awadah,” a/k/a
“Abdulbasit Awadh Mbarak Assayid,” MOHAMED RASHED DAOUD
AL-’OWHALI, a/k/a “Khalid Salim Saleh Bin Rashed,”
a/k/a “Moath,” a/k/a “Abdul Jabbar Ali
Abdel-Latif,” MUSTAFA MOHAMED FADHIL, a/k/a “Mustafa Ali
Elbishy,” a/k/a “Hussein,” a/k/a “Hussein
Ali,” KHALFAN KHAMIS MOHAMED, a/k/a “Khalfan
Khamis,” AHMED KHALFAN GHAILANI, a/k/a “Fupi,” a/k/a
“Abubakary Khalfan Ahmed Ghailani,” a/k/a “Abubakar
Khalfan Ahmed,” FAHID MOHAMMED ALLY MSALAM, a/k/a “Fahad M.
Ally,” SHEIKH AHMED SALIM SWEDAN, a/k/a “Sheikh
Bahamadi,” a/k/a “Ahmed Ally,” Defendants. S(6) 98 Cr. 1023 (LBS) UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK March 13, 2000,
Decided DISPOSITION: [**1]
Odeh’s motion to dismiss Counts 5-233, 236-239, and 242-244 for lack
of jurisdiction denied; his motion to dismiss Counts 234, 235, 240, and 241 for
lack of jurisdiction granted. COUNSEL: MARY JO WHITE, United States Attorney for the
Southern District of New York, New York, New York, KENNETH KARAS, PATRICK
FITZGERALD, MICHAEL J. GARCIA, PAUL BUTLER, Assistant United States Attorneys. For Salim, Defendant: PAUL McALLISTER, CHARLES D. ADLER, GEORGE
GOLTZER, New York, New York. For Mohamed, Defendant: JAMES ROTH, LLOYD EPSTEIN, New York, New
York. For El Hage, Defendant: SAMUEL SCHMIDT, JOSHUA DRATEL, DEBORAH I.
MEYER, New York, New York. For Odeh, Defendant: MICHAEL YOUNG, CARL J. HERMAN, SANDRA L.
BABCOCK, New York, NY. For Al-’Owhali, Defendant: LEONARD JOY, ROBERT TUCKER,
MARK GOMBINER, DAVID BRUCK, New York, New York. For Khamis Mohamed, Defendant: JEREMY SCHNEIDER, DAVID STERN,
DAVID RUHNKE, New York, NY. JUDGES: HON. LEONARD B. SAND, U.S.D.J. OPINION BY: LEONARD B. SAND OPINION: [*192] OPINION March 13, 2000 HON. LEONARD B. SAND, U.S.D.J. Opinion as to Jurisdiction n1 n1 This opinion deals solely with defendants’ claims that
the Court lacks jurisdiction. Other matters raised in defendants’
pending motions will be dealt with in succeeding opinions. [**2] The sixth superseding indictment in this case (“the
Indictment”) charges fifteen defendants with conspiracy to murder
United States nationals, to use weapons of mass destruction against United
States nationals, to destroy United States buildings and property, and to
destroy United States defense utilities. The Indictment also charges defendants
Mohamed Sadeek Odeh, Mohamed Rashed Daoud al-’Owhali, and Khalfan
Khamis Mohamed, among others, with numerous crimes in connection with the August
1998 bombings of the United States Embassies in Nairobi, Kenya, and Dar es
Salaam, Tanzania, including 223 counts of murder. The Indictment also charges
defendant Wadih el Hage with numerous perjury and false statement counts. Six
of the Defendants are presently in the custody of the Bureau of Prisons:
Mamdouh Mahmud Salim, Ali Mohamed, Wadih El Hage, Mohamed Rashed Daoud
Al-Owhali, Khalfan Khamis Mohamed, and Mohamed Sadeek Odeh
(“Odeh”). Presently before the Court is Odeh’s Motion
to Dismiss Counts 5-244 for Lack of Jurisdiction, in which the other defendants
join. For the reasons given below, we grant Odeh’s Motion as to Counts
234, 235, 240, and 241, but deny it as to Counts 5-233, 236-239, and [**3]
242-244. Discussion Odeh argues that most of the counts charged in the Indictment must
be dismissed by this Court because they are based on statutes that are
inapplicable to the acts he is alleged to have performed. In support of this
position, Odeh advances six arguments, which we address seriatim. I. Extraterritorial Application Odeh argues that Counts 5-8, 11-237, and 240-244 must be dismissed
because (a) they concern acts allegedly performed by Odeh and his co-defendants
outside United States territory, yet (b) are based on statutes that were not
intended by Congress to regulate conduct outside United States territory. More
specifically, Odeh argues that “the following statutes that form the
basis for the indictment fail clearly and unequivocally to regulate the conduct
of foreign nationals for conduct outside the territorial boundaries of the
United States: (1) 18 U.S.C. § 930; (2) 18 U.S.C.
§ 844; 18 U.S.C. § 1111; 18 U.S.C.
§ 2155; 18 U.S.C. § 1114; [ 18 U.S.C.
§ 924(c);] and 18 U.S.C. § 114. [**4]
“ Odeh’s Memo. at 7. Whether Congress intended several of
these provisions (viz., Sections 844(f), (h), and (n); 930(c), and 2155) to
apply extraterritorially present issues of first impression. n2 n2 Indeed, only one case, United States v. Erdos, 474 F.2d 157 (4th
Cir.), cert. denied, 414 U.S. 876, 38 L. Ed. 2d 122, 94 S. Ct. 42 (1973), has
concluded, in effect, that Sections 114 and 1111 apply extraterritorially to
the conduct of United States citizens. Similarly, only one case, United
States v. Benitez, 741 F.2d 1312 (11th Cir. 1984), cert.
denied, 471 U.S. 1137, 86 L. Ed. 2d 698, 105 S. Ct. 2679 (1985), has held that
Section 1114 applies to the extraterritorial conduct of foreign nationals; and
only one case, United States v. Yousef, 927 F. Supp. 673
(S.D.N.Y. 1996), has held that Section 924(c) applies to the extraterritorial
conduct of foreign nationals. [*193] A. General Principles of Extraterritorial Application It is well-established that Congress has the power to regulate
conduct [**5] performed outside United States territory. See EEOC
v. Arabian Am. Oil Co., 499 U.S. 244, 248, 113 L.
Ed. 2d 274, 111 S. Ct. 1227 (1991) (“Congress has the authority to
enforce its laws beyond the territorial boundaries of the United
States.”). It is equally well-established, however, that courts are to
presume that Congress has not exercised this power — i.e., that
statutes apply only to acts performed within United States territory —
unless Congress manifests an intent to reach acts performed outside United
States territory. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188, 125 L.
Ed. 2d 128, 113 S. Ct. 2549 (1993) (“Acts of Congress normally do not
have extraterritorial application unless such an intent is clearly
manifested.”); Arabian Am. Oil Co., 499 U.S. at 248 (quoting Foley
Bros v. Filardo, 336
U.S. 281, 285, 93 L. Ed. 680, 69 S. Ct. 575 (1949)) (“It is a
longstanding principle of American law ‘that legislation of Congress,
unless a contrary intent appears, is meant to apply only within the territorial
jurisdiction of the United States.’”). This “clear
manifestation” requirement does not require that extraterritorial
coverage should be found only if the statute itself explicitly provides for
extraterritorial [**6] application.
Rather, courts should consider “all available evidence about the
meaning” of the statute, e.g., its text, structure, and legislative
history. Sale, 509 U.S. at 177; See also Smith v. United States, 507 U.S. 197, 201-03, 122
L. Ed. 2d 548, 113 S. Ct. 1178 (1993) (examining text, structure, and
legislative history). Furthermore, the Supreme Court has established a limited exception
to this standard approach for “criminal statutes which are, as a
class, 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.” United States
v. Bowman, 260 U.S. 94,
98, 43 S. Ct. 39, 67 L. Ed. 149 (1922). As regards statutes of this type,
courts may infer the requisite intent “from the nature of the
offense” described in the statute, and thus need not examine its
legislative history. n3 Id. The Court further observed that
“to limit the[] locus [of such a statute] to the strictly territorial
jurisdiction [of the United States] would be greatly to curtail the scope and
usefulness of the statute [**8] 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. Bowman concerned
a statute making it illegal knowingly to “present[] a false claim
against the United States, … to any officer of the civil, military or
naval service or to any department ….” Id. at 101
(emphasis added). n4 In concluding that Congress intended this [*194]
statute to apply extraterritorially, the Court reasoned that it
“cannot [be] supposed that when Congress enacted the statute or
amended it, it did not have in mind that a wide field for such frauds upon the
Government was in private and public vessels of the United States on the high
seas and in foreign ports beyond the land jurisdiction of the United States
….” Id. at 102. n3 This is not necessarily to say, however, that legislative
history is entirely irrelevant under the Bowman exception to the
standard approach. Given that the Bowman rule is ultimately
concerned with congressional intent, if the legislative history clearly
indicates that Congress intended the statute in question to apply only within
the United States, it would be inconsistent with Bowman to ignore
this evidence, and conclude — in reliance on Bowman —
that Congress intended the statute to apply extraterritorially. Hence, in our
examination below of each of the statutes targeted by Odeh, we give due
attention to Odeh’s arguments to the effect that a given
statute’s legislative history evinces Congress’s intent that
the statute is to apply only within the United States. [**8] n4 The Bowman Court also identified, as members of the
special class of statutes to which the Bowman rule applies,
statutes penalizing: “whoever as consul knowingly certifies a false
invoice”; “forging or altering ship’s
papers”; “enticing desertions from the naval
service”; “bribing a United States officer of the civil,
military, or naval service to violate his duty or to aid in committing a fraud
on the United States”; “the bringing in, custody, sale or
other disposition of property captured as prize, with intent to defraud, delay
or injure the United States or any captor or claimant of such
property”; “steal[ing], embezzling, or knowingly applying to
his own use ordinance, arms, ammunition, clothing, subsistence stores, money or
other property of the United States furnished or to be used for military or
naval service.” 260 U.S. at 99-100 (emphasis added). Odeh argues that Bowman is “not
controlling precedent” because it “involved the application
of [a] penal statute[] to United States citizens,” i.e., not to
foreign nationals such as himself.
[**9] Odeh’s Memo. at 17. This argument is
unavailing for three reasons. First, although Bowman
“is expressly limited by its facts to prosecutions of United States
citizens,” Odeh’s Reply Memo. at 3 (emphasis added), its
underlying rationale is not dependent on the nationality of the offender.
Rather, Bowman rests on two factors: (1) the right of the
United States to protect itself from harmful conduct — irrespective of
the locus of this conduct, and (2) the presumption that Congress would not both
(a) enact a statute designed to serve this protective function, and —
where the statute proscribes acts that could just as readily be performed
outside the United States as within it — (b) undermine this protective
intention by limiting the statute’s application to United States
territory. Given that foreign nationals are in at least as good a position to
perform extraterritorial conduct as are United States nationals, it would make
little sense to restrict such statutes to United States nationals. To
paraphrase Bowman, “to limit [a statute’s
coverage to United States nationals] would be greatly to curtail the scope and
usefulness of the statute and leave open a large immunity [**10] for
frauds as easily committed [by foreign nationals] as [by United States
nationals].” Bowman, 260 U.S. at 98. Second, the Courts of Appeals — focusing on Bowman’s
general rule rather than its peculiar facts — have applied this rule
to reach conduct by foreign nationals on foreign soil. For example, the Court
of Appeals for this Circuit has held that 18 U.S.C. § 1546,
which criminalizes the making of false statements with respect to travel
documents, was intended by Congress to apply extraterritorially to the conduct
of foreign nationals. See United States v. Pizzarusso, 388 F.2d
8, 9 (2d Cir.), cert. denied, 392 U.S. 936, 20 L. Ed. 2d 1395, 88 S. Ct. 2306
(1968); n5 see also United States v. Larsen, 952 F.2d 1099, 1101
(9th Cir. 1991) (18 U.S.C. § 841(a)(1) — possession
of narcotics with intent to distribute); United States v. Wright-Barker, 784 F.2d
161, 167 (3d Cir. 1986) (same); United States v. Orozco-Prada, 732 F.2d
1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845 (1984) (same); United
States v. Benitez, 741 F.2d 1312, 1317 (11th Cir. 1984), [**11]
cert. denied, 471 U.S. 1137, 86 L. Ed. 2d 698, 105 S. Ct. 2679 (1985) (18
U.S.C. § 2112 — theft of personal property of the
United States); United States v. Zehe, 601 F. Supp. 196,
200 (D. Mass. 1985) (18 U.S.C. §§ 792-799 —
[*195] espionage). Indeed, the Eleventh Circuit has held
that one of the statutes targeted by Odeh, viz., 18 U.S.C.
§ 1114 — which penalizes murder and attempted murder
of officers and employees of the United States — applies to conduct by
foreign nationals on foreign soil. See Benitez, 741 F.2d at 1317. n6
Correlatively, no court, to date, has refused to apply the Bowman rule on
the ground that the defendant was a foreign national. n7 n5 Strictly speaking, it would be inaccurate to say that
Pizzarusso held that Bowman applies to conduct performed by
foreign nationals on foreign soil, because the Pizzarusso Court noted that Bowman applies
strictly only to extraterritorial conduct of United States nationals. See 388
F.2d at 9 n.2 (noting that Bowman is
“distinguishable as that case involved imposition of criminal
liability on United States citizens for acts committed abroad”). For
all intents and purposes, however, the Pizzarusso Court applied Bowman’s
presumption rule to 18 U.S.C. § 1546: We think the Congress by the enactment of this law contemplated
that it would be applied extraterritorially. Visas are documents issued to
aliens permitting them to enter the country. In the ordinary course of events
we would naturally expect false statements in visa applications to be made
outside the territorial limits of the United States. This would seem to
overcome the strong presumption that the Congress did not intend the statute to
apply extraterritorially. Id. at 9. [**12] n6 The Government would add to this list United States v.
Vasquez-Velasco, 15 F.3d 833, 839-41 (9th Cir. 1994), which held that 18
U.S.C. § 1959 — violent crimes in aid of
racketeering activity — applies extraterritorially. See Gov’t
Memo, at 10-11. Although admitting that the opinion itself does not specify the
nationality of the defendant, the Government contends that the underlying
indictment and various press reports reveal that he was a foreign national. Id. at 11
n.2. Odeh responds that, “as the court does not address the question
of citizenship, there is no basis upon which to conclude that the court
considered the matter. ‘Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are not [to be] considered
as having been so decided as to constitute precedents.’”
Odeh’s Reply Memo. at 11 (quoting Webster v. Fall, 266 U.S. 507, 511, 69 L.
Ed. 411, 45 S. Ct. 148 (1925)). The problem with this response is that the Vasquez-Velasco
Court’s reasoning strongly indicates that the Court believed the
defendant to be a foreign national. After noting (i) that “the
protective principle” permits the United States to assert jurisdiction
“over foreigners for an act committed outside the United States that
may impinge on the territorial integrity, security, or political independence
of the United States,” the Court concluded that
“extraterritorial application of § 1959 is
… appropriate in this case … [because] the violent crime was
directed against the United States ….” 15 F.3d at 840, 841
(emphasis added). In any event, the very fact that the Court found it unnecessary to
mention the nationality of the defendant belies Odeh’s repeated
contention that the nationality of the defendant is important to the Bowman rationale.
It is similarly noteworthy that none of the Bowman progeny
that involve defendants who are United States citizens explicitly base their
respective holdings on the fact that the defendant is a United States national.
See, e.g., United States v. Layton, 855 F.2d 1388, 1395
(9th Cir. 1988), cert. denied, 489 U.S. 1046, 103 L. Ed. 2d 244, 109 S. Ct.
1178 (1989) (18 U.S.C. § 351 — murder or attempted
murder of high-ranking United States Government officials); United States v.
Cotten, 471 F.2d 744, 750 (9th Cir.), cert. denied, 411 U.S. 936, 36 L.
Ed. 2d 396, 93 S. Ct. 1913 (1973) (18 U.S.C. § 641 —
theft of United States Government property). [**13] n7 Indeed, Odeh cites (and the Court is aware of) but a single
case in which a court has explicitly refused to apply the Bowman rule,
viz., United States v. Mitchell, 553 F.2d 996 (5th Cir. 1977)
— and the defendant in that case was a citizen of the United States. Third, the irrelevance of the defendant’s nationality to
the Bowman rule is reinforced by a consideration of the relationship
between this rule and the principles of extraterritorial jurisdiction
recognized by international law. n8 Under international law, the primary basis
of jurisdiction is the “subjective territorial principle,”
under which “a state has jurisdiction to prescribe law with respect to
… conduct that, wholly or in substantial part, takes place within its
territory.” Restatement (Third) of the Foreign Relations Law of the
United States § 402(1)(a) (1987); see also Christopher L.
Blakesley, Extraterritonal Jurisdiction in M. Cherif Bassiouni (ed.),
International Criminal Law 47-50 (2d ed. 1999). International law recognizes
five other principles of jurisdiction by which a state [**14] may
reach conduct outside its territory: (1) the objective territorial principle;
(2) the protective principle; (3) the nationality principle; (4) the passive
personality principle; and (5) the universality principle. See id. at 50-81.
The objective territoriality principle provides that a state has jurisdiction
to prescribe law with respect to “conduct outside its territory that
has or is intended to have substantial effect within [*196] its
territory.” Restatement § 402(1)(c). The protective
principle provides that a state has jurisdiction to prescribe law with respect
to “certain conduct outside its territory by persons not its nationals
that is directed against the security of the state or against a limited class
of other state interests.” Id.
§ 402(3) (emphasis added). The nationality principle provides
that a state has jurisdiction to prescribe law with respect to “the
activities, interests, status, or relations of its nationals outside as well as
within its territory.” Id.
§ 402(2). The passive personality principle provides that
“a state may apply law — particularly criminal law —
to an act committed outside its territory by a person not its national [**15]
where the victim of the act was its national.” Id.
§ 402, cmt. g. The universality principle provides that,
“[a] state has jurisdiction to define and prescribe punishment for
certain offenses recognized by the community of nations as of universal
concern, such as piracy, slave trade, attacks on or hijacking of aircraft,
genocide, war crimes, and perhaps certain acts of terrorism,”
regardless of the locus of their occurrence. Id.
§ 404 (emphasis added). Because Congress has the power to
override international law if it so chooses, see United States v. Yunis, 288 U.S.
App. D.C. 129, 924 F.2d 1086, 1091 (D.C. Cir. 1991); United States v.
Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945);
Restatement § 402, cmt. i., none of these five principles
places ultimate limits on Congress’s power to reach extraterritorial conduct.
At the same time, however, “in determining whether a statute applies
extraterritorially, [courts] presume that Congress does not intend to violate
principles of international law…. [and] in the absence of an explicit
Congressional directive, courts do not give extraterritorial effect to any
statute that violates principles of international [**16]
law.” United States v. Vasquez-Velasco, 15 F.3d 833, 839
(9th Cir. 1994) (citing McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10,
21-22, 9 L. Ed. 2d 547, 83 S. Ct. 671 (1963). Hence, courts that find that a
given statute applies extraterritorially typically pause to note that this
finding is consistent with one or more of the five principles of
extraterritorial jurisdiction under international law. See, e.g., United
States v. MacAllister, 160 F.3d 1304, 1308 (11th Cir. 1998), cert.
denied, 145 L. Ed. 2d 114, 120 S. Ct. 318 (1999) (objective territorial
principle); Vasquez-Velasco, 15 F.3d at 841 (objective
territoriality principle, protective principle, and universality principle); United
States v. Felix-Gutierrez, 940 F.2d 1200, 1205-1206 (9th Cir. 1991),
cert. denied, 508 U.S. 906 (1993) (objective territoriality principle,
protective principle, and passive personality principle); Benitez, 741 F.2d
at 1316 (protective principle and passive personality principle); Pizzarusso, 388 F.2d
at 11 (protective principle). n8 As Odeh correctly points out, the question whether
“Congress intended that [a] statute have extraterritorial
effect,” is distinct from and precedent to the question of whether
extraterritorial application of the statute accords with international law.
Odeh’s Memo. at 7 n.3. Our purpose here is merely to explain why the
lower federal courts have viewed the extension of the Bowman rule to
foreign nationals as unproblematic. [**17] The Bowman rule would appear to be most directly related
to the protective principle, which, as noted, explicitly authorizes a
state’s exercise of jurisdiction over “conduct outside its
territory by persons not its nationals.” Restatement
§ 402(3). Hence, an application of the Bowman rule that
results in the extraterritorial application of a statute to the conduct of
foreign nationals is consistent with international law. Therefore, it is not
surprising that the lower courts have shown no hesitation to apply the Bowman rule in
cases involving foreign defendants. Odeh attempts to distinguish the preceding lower federal court
cases — with the exception of Benitez — by arguing
that they concern a special category of “inherently
extraterritorial” statutes. Odeh’s Reply Memo, at 7. Such
statutes “regulate activities that routinely occur on the high seas or
on foreign soil.” Id. at 8 (citing Pizzarusso, 388 F.2d
at 8). n9 According to [*197] Odeh, none of the statutes which
he challenges, viz., 18 U.S.C. §§ 844(f), (h), and
(n), 924(c), 930, 1111, 7, 114, 1114, and 2155 — with the possible
exception of Section [**18] 2155 —
fall into this category. See id. at 10. Rather, these
statutes are “inherently domestic,” “bereft of any
reference to extraterritorial acts,” and “lack any connection
to international activities.” Id. n10 n9 He also suggests (i) that these statutes are
“‘inherently international in scope,’”
Odeh’s Reply Memo. at 8 (quoting United States v. Evans, 667 F.
Supp. 974, 980 (S.D.N.Y. 1987), and, (ii) that courts that condone the
extraterritorial application of such statutes typically “rely heavily
on the legislative history” thereof. Id. at 9 (citing Evans and United
States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983). These claims
are beside the point, however, because (i) neither of these cases mentions Bowman and (ii)
although Evans cites Pizzarusso, it does not do so for the purpose of applying Pizzarusso’s
Bowmanesque rule. See also id. at 5-6 (erroneously stating that Evans and Pinto-Mejia
“cited Bowman when applying legislation to foreigners
acting outside the territorial boundaries of the United States”).
[**19] n10 It is because Benitez condoned
extraterritorial application of Section 1114 that Odeh does not attempt to
distinguish it from the present case. Odeh’s primary criticism of Benitez is that,
“although the Benitez court took note of the
defendant’s citizenship, it failed even to address the relationship
between foreign citizenship and the extraterritorial application of
statues.” Odeh’s Reply Memo. at 11-12. This criticism is
question-begging, however, as this supposed “failure” has a
plausible alternative explanation: The Bowman rationale, as noted,
does not depend on the nationality of the defendant. This attempt to distinguish the preceding lower federal court
cases fails for two reasons. First, it fails for basically the same reason that
Odeh’s attempt to distinguish Bowman itself fails: It
fixates on the peculiar facts of these cases rather than on the underlying Bowman rationale
on which the courts base their respective holdings. Again, this rationale
depends in no way on the nationality of the perpetrator. Rather, it depends on
the right of the United States [**20] to defend
itself from harmful conduct regardless of its locus, and a presumption that
Congress would not undercut the effectiveness of statutes intended to serve
this protective purpose by limited them to United States territory and United
States nationals. Second, as detailed below, most of the statutes targeted by Odeh
are more clearly designed to protect the United States than is the drug
smuggling statute, viz., 18 U.S.C. § 841(a)(1), that is on
Odeh’s list of “inherently extraterritorial”
statutes; and, similarly, most of these statutes protect United States
interests that are arguably of more importance than the interest protected by
the fraudulent visa application statute, viz., 18 U.S.C.
§ 1546, which is likewise on that list. Surely it would be an
anomalous state of affairs if, on the one hand, a statute that provides merely
that “it shall be unlawful … to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance,” 18 U.S.C. § 841(a)(1), were
an “inherently extraterritorial” statute; while, on the other
hand, a statute that makes it [**21] unlawful to
“kill or attempt to kill any officer or employee of the United
States,” 18 U.S.C. § 1114, were an
“inherently domestic” statute. Yet it is precisely this
anomalous state of affairs that Odeh invites this Court to establish. We
decline to do so. A final general principle that bears on Odeh’s motion
provides that a statute that is ancillary to a substantive offense statute will
be presumed to have extraterritorial effect if the underlying substantive
statute is first determined to have extraterritorial effect. See Felix-Gutierrez, 940 F.2d
at 1204-05 (18 U.S.C. § 3 — accessory after the
fact); Chua Han Mow v. United States, 730 F.2d 1308, 1311
(9th Cir. 1984), cert. denied, 470 U.S. 1031, 84 L. Ed. 2d 790, 105 S. Ct. 1403
(1985) (21 U.S.C. §§ 846 and 963 —
conspiracy and attempt; “This court has … regularly inferred
extraterritorial reach of conspiracy statutes on the basis of a finding that
the underlying substantive statutes reach extraterritorial
offenses.”); United States v. Yousef, 927 F. Supp. 673,
682-83 (S.D.N.Y. 1996) (18 U.S.C. § 371 [**22]
— conspiracy directed against the United States; 18 U.S.C.
§ 924(c) — using or carrying a firearm in connection
with another felony). n11 n11 Section 924(c) is one of the statutes targeted by Odeh. See
Odeh’s Memo. at 21; Subsection I.B.2, infra. [*198] B. 18 U.S.C. §§ 844, 924, 930, 1114,
and 2155 In light of the preceding general principles, we find that
Congress intended each of the following statutory provisions to reach conduct
by foreign nationals on foreign soil: 18 U.S.C. § 844(f)(1),
(f)(3), (h) and (n); 18 U.S.C. § 924(c); 18 U.S.C. § 930(c);
18 U.S.C. § 1114; and 18 U.S.C. § 2155. We
consider each in turn. 1. 18 U.S.C. § 844(f), (h), and (n) The Indictment predicates Count 5 n12 on 18 U.S.C.
§§ 844(f) and (n); Counts 7 n13 and 8 n14 on 18
U.S.C. § 844 [**23] (f), and Count
242 n15 on 18 U.S.C. § 844(h). Subsection 844(f)(1) provides: Whoever maliciously
damages or destroys, or attempts to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other personal or real property in whole
or in part owned or possessed by, or leased to, the United States, or any
department or agency thereof, shall be imprisoned for not less than 5 years and
not more than 20 years, fined under this title, or both. 18 U.S.C. § 844(f)(1). Given (i) that this
provision is explicitly intended to protect United States property, (ii) that a
significant amount of United States property is located outside the United
States, and (iii) that, accordingly, foreign nationals are in at least as good
a position as are United States nationals to damage such property, we find,
under Bowman, that Congress intended Section 844(f)(1) to apply
extraterritorially — irrespective of the nationality of the
perpetrator. n12 Count 5 charges Odeh and others with conspiracy to
“(i) bomb American facilities anywhere in the world, including
American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, (ii) attack
employees of the American Government stationed at those facilities …,
(iii) attack military installations and members of the American military
stationed at such military installations in Saudi Arabia, Yemen, Somalia and
elsewhere with bombs, and (iv) engage in conduct with the result of such
conduct directly and proximately causing the death of persons
….” [**24] n13 Count 7 charges Odeh and others with “detonating an
explosive device that damaged and destroyed the United States Embassy in
Nairobi, Kenya, and [thereby] … causing the deaths of at least 212
persons, including Kenyan and American citizens.” n14 Count 8 charges Odeh and others with “detonating an
explosive device that damaged and destroyed the United States Embassy in Dar es
Salaam, Tanzania, and [thereby] … causing the deaths of at least 11
persons, including Tanzanian citizens.” n15 Count 242 charges Odeh and others with “using and
carrying bombs in connection with the attacks on the United States embassies in
Nairobi, Kenya and Dar es Salaam, Tanzania.” Subsection 844(f)(3) provides: Whoever engages in
conduct prohibited by this subsection [(f)], and as a result of such conduct
directly or proximately causes the death of any person, including any public
safety officer performing duties, shall be subject to the death penalty, or
imprisoned for not less than 20 years or for life, fined under this title, or
both. 18 U.S.C. § 844 [**25]
(f)(3). Given that this provision is dependent on Subsection 844(f)(1), our
determination that Congress intended that Subsection to apply
extraterritoriality — irrespective of the nationality of the offender,
leads us to conclude that Congress likewise intended this Subsection to apply
extraterritorially — irrespective of the nationality of the offender. Subsection 844(h) provides in relevant part: Whoever (1) uses fire
or an explosive to commit any felony which may be prosecuted in a court of the
United States, or (2) carries an explosive during the commission of any felony
which may be prosecuted in a court of the United States, including a felony
which provides for an enhanced punishment if committed by the use of a deadly
or dangerous weapon or device shall, in addition to the punishment provided for
such felony, be sentenced to imprisonment for 10 years. [*199] 18 U.S.C. § 844(h). The
underlying substantive felony provision on which the Indictment predicates this
ancillary provision is 18 U.S.C. § 2332(b). Section 2332(b)
provides in relevant part that “whoever outside the United States
… engages in a conspiracy [**26] to
kill[] a national of the United States shall [be punished as further
provided].” 18 U.S.C. § 2332(b) (emphasis added).
n16 Because (i) Congress explicitly intended Section 2332(b) to apply
extraterritorially, and (ii) foreign nationals are in at least as good a
position as are United States national to engage in extraterritorial
conspiracies to kill United States nationals, we find that Congress intended it
to apply to foreign national offenders. Accordingly, we find that Section
844(h) likewise applies extraterritorially — irrespective of the
nationality of the offender. n16 Count 1 of the Indictment is predicated on Section 2332(b).
Count 1 charges that, “from at least 1991 until [1999] [Odeh and
others] … conspired to “(i) murder United States nationals
anywhere in the world, including the United States, (ii) kill United States
nationals employed by the United States military who were serving in their official
capacity in Somalia and on the Saudi Arabian peninsula; (iii) kill United
States nationals employed at the United States Embassies in Nairobi, Kenya, and
Dar es Salaam, Tanzania, including Internationally Protected Persons; and (iv)
engage in conduct to conceal the activities and means and methods of the
co-conspirators ….” - [**27] Subsection 844(n) provides in relevant part that “a
person who conspires to commit any offense defined in this chapter shall be
subject to the same penalties (other than the penalty of death) as the
penalties prescribed for the offense the commission of which was the object of
the conspiracy.” 18 U.S.C. § 844(n). The Indictment
predicates this conspiracy provision on Subsections 844(f)(1) and (f)(3). As we
have already concluded that those Subsections apply extraterritorially
— irrespective of the nationality of the offender, we readily conclude
that Subsection 844(n) likewise applies extraterritorially —
irrespective of the nationality of the offender. Odeh advances two arguments in opposition to these conclusions
about the extraterritorial reach of the preceding subsections of Section 844.
First, he argues that Congress’s subsequent enactment of legislation
similar to Section 844, but which — unlike Section 844 —
explicitly provides for extraterritorial application, indicates that Congress
did not intend Section 844 to apply extraterritorially. Specifically, Odeh
argues that, as 18 U.S.C. § 2332a(a)(3) “penalizes
the use of [**28] explosives against … property
‘owned, leased, or used,’ by the United States [located
abroad],” Odeh’s Memo. at 9 (quoting 18 U.S.C.
§ 2332a(a)(3)), … surely[] Congress would not have
felt the need to pass separate legislation penalizing the use of explosives
against United States nationals abroad, if 18 U.S.C. § 844
applied extraterritorially.” Id. We find this argument unpersuasive. The argument appears to
envision the following scenario: Wishing to prosecute bombings of federal
property overseas, but aware that Section 844(f) applies only to bombings in
the United States, Congress was forced to enact a separate statute, which,
though covering basically the same conduct as 844(f), applies
extraterritorially. Given the similarity of the two statutes, however, one
wonders why Congress would not simply have amended Section 844(f) by specifying
that it applies extraterritorially, or, alternatively, repeal Section 844(f) when
it enacted Section 2332a(a)(3). The obvious explanation for why Congress took
neither of these actions is that there are important substantive differences
between Section 844(f) and Section 2332a(a)(3). [**29] The
latter covers threats and conspiracies to damage United States property whereas
the former does not. The former covers the use of fire for the purpose of
damaging United States property whereas the latter does not. The latter covers
biological weapons whereas the former does not. The former provides for fines
whereas the latter does not. Hence, Congress had numerous reasons to enact
Section 2332a(a)(3) other than a supposed need to cure Section
844(f)’s unfortunate [*200]
“intraterritoriality.” Cf. Larsen, 952 F.2d
at 1101 (reasoning, in regard to two statutes whose relationship parallels the
relationship between Sections 844(f) and 2332a(a)(3), that, because
“the two statutes [did not] have precisely the same provisions, beyond
the extraterritoriality issue, … [these] other differences between the
statutes … can explain Congress’ intent in enacting [the
later of the two].”). This said, the question remains why, given the similarity between
the two statutes, Congress, at the time it enacted Section 2332a(a)(3), did not
bother to make explicit Section 844(f)’s extraterritoriality
— especially in light of the fact that Congress amended Section 844(f)
in the [**30] very act in which Section 2332a(a)(3)
was added to Title 18. See Violent Crime Control and Enforcement Act of 1994,
Pub. L. 103-322, Title VI, § 320106, 108 Stat. 1769, 2111.
The Government’s proposed explanation for this omission is that
“Congress is … well aware that under Bowman and its
progeny, it [is] not required to explicitly spell out its intent when the
nature of the conduct covered by Section [844(f)] reflects necessarily its
intent to apply to foreign conduct.” Gov’t Memo. at 21. The
problem with this explanation is that it does not really account for the
difference between Congress’s handling of the two statutes. Congress
could have relied on Bowman for Section 2332a(a)(3) just as much
as it supposedly relied on Bowman for Section 844(f).
Congress chose not to rely on Bowman for Section 2332a(a)(3),
presumably, because it wanted to leave no doubt that it intended this statute
to apply extraterritorially. But then why didn’t Congress likewise
make Section 844(f)’s extraterritoriality explicit? A more plausible explanation is that Congress’s enactment
of Section 2332a(a)(3) was carried out without concern about its relation to
Section 844(f). [**31] And this is
just to say that Congress’s disparate treatment of these two
provisions has little bearing on the issue of Section 844(f)’s
extraterritoriality. In short, we find Odeh’s speculations about the relation
between these two statutes insufficient to overcome our conclusion —
based on Bowman — that Congress intended Section
844(f) to apply extraterritorially. This brings us to Odeh’s second argument. Odeh points out
that “the Second Circuit has recognized … that
‘congressional consideration of an issue in one context, but not
another, in the same or similar statutes, implies that Congress intends to
include that issue only where it has so indicated.’”
Odeh’s Reply Memo. at 13 (quoting United States v. Azeem, 946 F.2d
13, 17 (2d Cir. 1991)) (emphasis added by Odeh). Given (i) that Section 844(f)
and Section 2332a(a) are indeed very similar, and (ii) that the latter
expressly provides for extraterritorial application, whereas the former does
not, courts should presume that Congress did not intend Section 844(f) to apply
extraterritorially. This second argument is potentially more powerful than
Odeh’s first argument because it rests on an interpretive [**32]
presumption rule, and thus does not require speculation about
Congress’s motives (as does his first argument). Indeed, if the Azeem rule were
the only interpretive presumption rule applicable to Section 844(f),
Odeh’s second argument would be quite persuasive. But of course there
is a second interpretive presumption rule applicable to Section 844(f): the Bowman rule.
Given that the respective applications of these two rules to Section 844(f)
yield irreconcilable conclusions about its coverage of extraterritorial
conduct, the question becomes which of these two rules should be accorded
precedence. “It is a traditional maxim of interpretation that specific
rules control over general rules.” Apostolic Pentecostal Church v.
Colbert, 169 F.3d 409, 414 (6th Cir. 1999) (citing Bulova Watch Co. v.
United States, 365
U.S. 753, 758, 6 L. Ed. 2d 72, 81 S. Ct. 864 (1961)). The Azeem rule
appears to be entirely general, applying to any and all
“issues” that may be considered by Congress for inclusion
within any and all types of statutes. [*201] The Bowman rule, in
contrast, applies primarily to criminal statutes, see Kollias v. D&G
Marine Maintenance, 29 F.3d 67, 71 (2d Cir. 1994), [**33]
cert. denied, 513 U.S. 1146, 130 L. Ed. 2d 1061, 115 S. Ct. 1092 (1995)
(finding that “Bowman should be read narrowly [such that]
… only criminal statutes, and perhaps only those relating to the
Government’s power to prosecute wrongs committed against it, are
exempt from the presumption” of intraterritoriality), and only to a
single issue that may be considered for inclusion within such statutes:
extraterritorial application. Given that Section 844(f) is a criminal statute,
and that we are here considering the issue of its extraterritorial application,
the Bowman rule controls. Therefore, our conclusion — based
on the Bowman rule — that Section 844(f) applies
extraterritorially survives Odeh’s second argument as well. 2. 18 U.S.C. § 924(c) The Indictment predicates Counts 243 n17 and 244 n18 on Section
924(c). Section 924(c) provides in relevant part: Any person who, during
and in relation to any crime of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in [**34] a
court of the United States, uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall [be punished as further provided]
… The Indictment predicates this ancillary provision on Subsections
844(f)(1) and (f)(3). Having concluded that Congress intended those Subsections
to apply extraterritorially — irrespective of the nationality of the
offender, we conclude that this ancillary provision likewise applies extraterritorially
— irrespective of the nationality of the offender. n17 Count 243 charges Odeh and others with “using and
carrying an explosive device during and in relation to [the bombing of the
United States Embassy in Nairobi, Kenya].” n18 Count 244 charges Odeh and others with “using and
carrying an explosive device during and in relation to [the bombing of the
United States Embassy in Dar es Salaam, Tanzania].” 3. 18 U.S.C. § 930(c) The Indictment predicates Counts 11-233 n19 on Subsection 930(c).
Subsection [**35] 930(c) provides that “[a]
person who kills or attempts to kill any person in the course of a violation of
subsection (a) or (b), or in the course of an attack on a Federal facility
involving the use of a firearm or other dangerous weapon, shall be punished [as
further provided].” 18 U.S.C. § 930(c). n20 A
“Federal facility” is defined as “a building or part
thereof owned or leased by the Federal Government, where Federal employees are
regularly present for the purpose of performing their official
duties.” 18 U.S.C. § 930(g)(1). Given (i) that this
provision is explicitly intended to protect vital United States interests, (ii)
that a significant number of Federal facilities are located outside [*202] the
United States, and (iii) that, accordingly, foreign nationals are in at least
as good a position as are United States nationals to attack Federal facilities,
we find, under Bowman, that Congress intended this provision to
apply extraterritorially — irrespective of the nationality of the
perpetrator. n19 Counts 11-222 charge Odeh and others with “detonating
an explosive device that damaged and destroyed the United States Embassy in
Nairobi, Kenya, [thereby] … causing the deaths of [212
persons].” Counts 223-23 3 charge Odeh and others with
“detonating an explosive device that damaged and destroyed the United
States Embassy in Dar es Salaam, Tanzania, [thereby] … causing the deaths
of [11 persons].” [**36] n20 Subsection 930(a) provides in relevant part that
“whoever knowingly possesses or causes to be present a firearm or
other dangerous weapon in a Federal facility (other than a Federal court
facility), or attempts to do so, shall be fined under this title or imprisoned
not more than 1 year, or both.” 18 U.S.C. § 930(a).
Subsection 930(b) provides that “whoever, with intent that a firearm
or other dangerous weapon be used in the commission of a crime, knowingly
possesses or causes to be present such firearm or dangerous weapon in a Federal
facility, or attempts to do so, shall be fined under this title or imprisoned
not more than 5 years, or both.” 18 U.S.C. § 930(b). Odeh argues that (i) because Section 930(c) was added to Section
930 by Title VI, Section 60014 of the Violent Crime Control and Enforcement Act
of 1994, Pub. L. 103-322, 108 Stat. 1796, 1973, and (ii) because Title VI
“contained several statutory provisions that expressly provided for
extraterritorial jurisdiction,” it follows that
“Congress’s failure to provide for extraterritorial [**37]
jurisdiction in” Section 930(c) means that Congress did not intend
that it apply extraterritorially. Odeh’s Memo. at 10-11. As Odeh
suggests in his Reply Memorandum, this argument involves an application of the Azeem rule. See
Odeh’s Reply Memo. at 12-14. Having concluded, in Subsection I.B.1
above, that the Bowman rule trumps the Azeem rule when
the statute is criminal and the issue is extraterritorial application, we find
that this argument cannot overcome our earlier conclusion — based on
the Bowman rule — that Section 930(c) applies
extraterritorially. 4. 18 U.S.C. § 1114 The Indictment predicates Counts 236 n21 and 237 n22 on Section
1114. Section 1114 provides in relevant part: Whoever kills or
attempts to kill any officer or employee of the United States or of any agency
in any branch of the United States Government (including any member of the
uniformed services) while such officer or employee is engaged in or on account
of the performance of official duties, or any person assisting such an officer
or employee in the performance of such duties or on account of that assistance,
shall be punished … 18 U.S.C. § 1114. [**38]
Given (i) that this provision is explicitly intended to protect vital United
States interests, (ii) that a significant number of United States officers and
employees perform their official duties in places outside the United States,
and (iii) that, accordingly, foreign nationals are in at least as good a
position as are United States nationals to kill or attempt to kill United
States officers and employees, we concur with the Eleventh Circuit’s
holding that the offense described by Section 1114 is “exactly the
type of crime that Congress must have intended to apply
extraterritorially” — irrespective of the nationality of the
offender. Benitez, 741 F.2d at 1317. n21 Count 236 charges that, “on or about August 7, 1998,
in Nairobi, Kenya … [Odeh and others] did murder and attempt to murder
officers and employees of the United States Government ….” n22 Count 237 charges that, “on or about August 7, 1998,
in Dar es Saalam, Tanzania … [Odeh and others] did murder and attempt
to murder officers and employees of the United States Government
….” [**39] Odeh argues that this conclusion is belied by Section
1114’s legislative history. Specifically, Odeh points out that,
“in 1996, Congress amended § 1114, [by] omitting [a]
list of [specific types of] federal employees encompassed by the statute, and
replacing it with the general language” quoted above. Odeh’s
Memo, at 18 (citing Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, Title VII, Subtitle B, § 727(a), 110 Stat.
1302). n23 Furthermore, “at the same time it amended
§ 1114, in the same piece of [*203] legislation,
Congress amended 18 U.S.C. § 1116, dealing with the murder or
manslaughter of internationally protected persons,” id., by
adding the following subsection: (c) If the victim of
an offense under subsection (a) is an internationally protected person outside
the United States, the United States may exercise jurisdiction over the offense
if (1) the victim is a representative, officer, employee, or agent of the
United States, (2) an offender is a national of the United States, or (3) an
offender is afterwards found in the United States … § 721(c). 110 Stat. at 1298 (codified as 18
U.S.C. § 1116 [**40] (c)). Odeh
argues that, “since all embassy employees are internationally
protected persons, and [thus] are within the scope of 18 U.S.C.
§ 1116(c), Congress had no need to include embassy employees
abroad within the framework of 18 U.S.C. § 1114.”
Odeh’s Memo. at 19. n23 Odeh argues that, (i) because, prior to the 1996 amendment,
Ҥ 1114 only proscribed the murder or manslaughter
of any security officer of the Department of State or Foreign
Service,” and (ii) because “other employees of the Department
of State were not covered, a notable exception given the lengthy list cf
federal employees covered by the statute,” it follows that
“Congress never anticipated § 1114 would be applied
to regular embassy employees abroad.” Odeh’s Memo. at 19.
This inference is undermined by the fact that the 1996 amendment replaced the
“lengthy list of federal employees” with the following broad,
inclusive language: “any officer or employee of the United
States” and “any person assisting such an officer or
employee.” 110 Stat. 1302. [**41] This argument is reminiscent of Odeh’s first argument
concerning Section 844(f), albeit with one important difference: Whereas the
conclusion of that argument is that Section 844(f) in toto does not apply extraterritorially,
the conclusion of this argument is merely that Section 1114 does not apply to a
narrow category of extraterritorially located employees, viz., embassy
employees. The much more limited scope of the latter argument is presumably due
to the fact that Sections 1114 and 1116 are even less similar to each other
than are Sections 844(f) and 2332a(a)(3). Specifically, Section 1116 appears to
apply to a relatively small subset of the broad class of United States
employees and officers covered by Section 1114. Of course this means that the
two statutes overlap to a considerable extent, and it is thus theoretically
possible that Congress — despite having chosen to use broad and
inclusive language in Section 1114 — intended to exclude a single
subset of the class of United States employees, viz., embassy employees. A
court would only be justified in concluding that this was Congress’s
actual intention, however, on the basis of particularized evidence of this
intention. [**42] The mere fact of overlap cannot
suffice. Yet Odeh’s argument basically relies on this mere fact.
Hence, our conclusion that Congress intended Section 1114 to apply
extraterritorially is unaffected by Odeh’s argument. 5. 18 U.S.C. § 2155 The Indictment predicates Count 6 n24 on Section 2155(a) and (b).
Subsection 2155(a) provides: Whoever, with intent
to injure, interfere with, or obstruct the national defense of the United
States, willfully injures, destroys, contaminates or infects, or attempts to so
injure, destroy, contaminate or infect any national-defense material,
national-defense premises, or national-defense utilities, shall be fined under
this title or imprisoned not more than ten years, or both. 18 U.S.C. § 2155(a). Given (i) that this
provision is explicitly intended to protect vital United States interests, (ii)
that a significant number of national-defense premises and utilities are
located outside the United States, and (iii) that, accordingly, foreign
nationals are in at least as good a position as are United States nationals to
injure such premises and utilities, we find, under Bowman, that
[**43] Congress intended it to apply
extraterritorially — irrespective of the nationality of the
perpetrator. n24 Count 6 charges Odeh and others with “conspiring
… to destroy, … and attempting to destroy …
national-defense material, national-defense premises and national-defense
utilities of the United States.” Subsection 2155(b) provides that “if two or more persons
conspire to violate this section, and one or more of such persons do any act to
effect the object of the conspiracy, each of the parties to such conspiracy
shall be punished as provided in subsection (a) of this section.”
Because this conspiracy provision is ancillary to Subsection 2155(a), our
finding that that Subsection applies extraterritorially — irrespective
of the nationality of the [*204] offender — leads us to
conclude that this Subsection likewise applies extraterritorially —
irrespective of the nationality of the offender. C. 18 U.S.C. §§ 1111 and 114 In contrast to our assessment of the preceding five statutes,
[**44] we find that neither 18 U.S.C.
§ 1111 nor 18 U.S.C. § 114 applies to the
extraterritorial conduct alleged in the counts predicated on these statutes. We
consider each statute in turn. 1. 18 U.S.C. § 1111 Counts 234 n25 and 235 n26 of the Indictment are predicated on 18
U.S.C. § 1111. Section 1111(a) defines murder in the first
and second degrees. Section 1111(b) specifies the penalties for each of these
two types of murder, and limits the reach of Section 1111 to murders committed
“within the special maritime and territorial jurisdiction of the
United States.” 18 U.S.C. § 1111(b). The
“special maritime and territorial jurisdiction of the United
States” is defined in 18 U.S.C. § 7. Among other
places, this realm of special jurisdiction includes any lands reserved or
acquired for the use of the United States, and under the exclusive or
concurrent jurisdiction thereof, or any place purchased or otherwise acquired
by the United States by consent of the legislature of the State in which the
same shall be, for the erection of a [**45]
fort, magazine, arsenal, dockyard, or other needful building. 18 U.S.C. § 7(3). n25 Count 234 charges that “on or about August 7, 1998,
in Nairobi, Kenya, within the special maritime and territorial jurisdiction of
the United States … [Defendant Odeh and others] … did kill
persons at the United States Embassy Compound in Nairobi, Kenya.” n26 Count 235 charges that “on or about August 7, 1998,
in Dar es Salaam, Tanzania, within the special maritime and territorial
jurisdiction of the United States … [Defendant Odeh and others] did
kill persons at the United States Embassy Compound in Dar es Salaam,
Tanzania.” Odeh confines his attention to Section 7(3), arguing, on a number
of grounds, that it “does not extend federal court jurisdiction to
acts occurring in foreign countries,” including, especially, United
States embassy premises. Odeh’s Memo at 12 (citations and internal
quotations omitted). The Government’s response to this position consists of
two, seemingly [**46] independent
arguments. One of these arguments likewise focuses on Section 7(3), i.e., on
the meaning of “the special maritime and territorial jurisdiction of
the United States.” The Government bases this argument almost entirely
on United States v. Erdos, in which the Fourth Circuit held that
“ 18 U.S.C. § 7(3) is a proper grant of
‘special’ jurisdiction embracing an embassy in a foreign
country acquired for the use of the United States and under its concurrent
jurisdiction.” 474 F.2d 157 (4th Cir.), cert. denied, 414 U.S. 876
(1973). The Government’s second argument consists in the (now
familiar) application of the Bowman rule. The specific
target of the Government’s Bowman analysis is unclear,
however. At times, the Government appears to be focusing on Section 1111(a),
i.e., on the substantive offense of murder. n27 At other times, however, the
focus appears to be Section 7(3). n28 We consider these two arguments in
reverse order. n27 For example, the Government argues that “because the
defendants in this case, including Odeh, were motivated by a specific intent to
intimidate and coerce the United States and its citizens and employees because
of their nationality, the murders … charged in this case under Section
… 1111 and 7(3) fit comfortably within the ambit of Bowman.”
Gov’t Memo. at 21-22. [**47] n28 For example, responding to Odeh’s appeal to the
legislative history of Section 7(3), the Government argues that
“random comments made during the legislative history of a statute
… do not, by themselves, change the analysis that the court should
apply under Bowman in deciding whether the statute should be
given extraterritorial effect.” Id. at 23. [*205] a. The Bowman Argument We consider first the Government’s (apparent) attempt to
apply the Bowman rule to Section 7(3). As noted, Bowman
established that, as regards a certain class of criminal statutes, Congress
need not “make specific provision in the law that the locus shall
include the high seas and foreign countries, but allows it to be inferred from
the nature of the offense.” 260 U.S. at 98 (emphasis added). It is
evident that this rule of statutory interpretation can only be applied to
statutory provisions that describe particular criminal offenses. Section 7(3),
however, is not a statutory provision of this type. Instead, it specifies
locations within which particular offenses may be [**48]
committed. Hence, it simply makes no sense for a court to ask if it can be
inferred, from “the nature of the offense” described in
Section 7(3), that Congress intended for the courts to have jurisdiction over
instances of this offense committed “out side [sic] of the strict
territorial jurisdiction” of the United States. Id. at 98.
Presented with the task of interpreting Section 7(3), a court — rather
than focusing on the nature of an offense — must simply determine the
meaning of expressions such as “lands … under the exclusive
and concurrent jurisdiction of the United States.” This brings us to the Government’s (apparent) attempt to
apply the Bowman rule directly to Section 1111(a), i.e., to
the offense of murder. At first sight, it might be thought that this provision
— unlike Section 7(3) — is susceptible to a Bowman analysis.
It makes sense to ask whether congressional intent to apply a murder statute to
murders committed beyond United States territory can be inferred from the
nature of the offense of murder. Section 1111, however, does not merely define
the offenses of first and second degree murder, and then specify the penalties
for each of [**49] these two types of murder. If this were
all it did, then Bowman would be relevant. The actual Section 1111,
however, includes its own jurisdictional element, viz., 1111(b) —
which limits Section 1111 as a whole to murders committed “within the special
maritime and territorial jurisdiction of the United States.” Hence, it
is misguided to attempt to apply Bowman to Section 1111(a).
Presented with the question of whether Section 1111 applies to a particular
murder, a court must determine whether this murder was committed
“within the special maritime and territorial jurisdiction of the
United States.” Answering this question requires the court to
determine the correct interpretation of Section 7(3). And, as noted, it makes
no sense to suggest that Bowman’s rule of interpretation can
be used for this latter purpose. b. The Erdos Precedent Erdos concerned the killing, in the American
Embassy in the Republic of Equatorial Guinea, of one American citizen by a
second American citizen. Id. at 158. n29 As noted, Erdos held that
“ 18 U.S.C. § 7(3) is a proper grant of
‘special’ territorial jurisdiction embracing an
embassy [**50] in a foreign country acquired for the use of the
United States and under its concurrent jurisdiction.” Id. at 160.
n30 n29 The defendant was charged under 18 U.S.C.
§ 1112, the manslaughter parallel of Section 1111. Section
1112(a) defines voluntary and involuntary manslaughter, while Section 1112(b)
limits the statute to “the special maritime and territorial
jurisdiction of the United States,” and specifies the respective
penalties for voluntary and involuntary manslaughter. n30 It bears mentioning that the Erdos court did
not reach this conclusion by means of applying the Bowman rule to
Section 1112 and/or to Section 7(3). And it appears unlikely that its failure
to do so can be attributed to its ignorance of the rule. Not only did the Court
acknowledge that the issue before it was not “the power of Congress to
lawfully proscribe the killing of an American citizen by another American
citizen within the diplomatic compound located in a foreign country,”
but rather Congress’s “intention, i.e., statutory
construction” id. at 159, but it cited Bowman twice in
the course of its discussion of Section 7(3). It thus appears that the Court
recognized the point made above, viz., that it simply makes no sense to apply
the Bowman rule to a statutory provision containing its own
jurisdictional element. [**51] [*206] Unfortunately, the reasoning upon which the Court based this
holding is elliptical and disjointed. The Court devoted most of its attention
to a determination of the relationship between the third phrase of
§ 7(3) (viz., “any place purchased or otherwise
acquired by the United States by consent of the legislature of the State in
which the same shall be, for the erection of a fort, magazine, arsenal,
dockyard, or other needful building”) and the first two phrases of
Section 7(3) (viz., “any lands reserved or acquired for the use of the
United States, and under the exclusive or concurrent jurisdiction
thereof”). The Court (correctly) determined that “the third
phrase is independent of and does not modify the first two [such that] the
sentence describes two kinds of places within the ‘special’
jurisdiction of the United States.” 474 F.2d at 159. Putting this
determination together with the (correct) determination that the third phrase
refers to places “within the United States,” n31 the Court
(apparently) inferred that the first two phrases refer to places outside the
United States. Id. Given that United States embassies are
located outside the United States, the [**52]
Court was thus able to conclude that United States embassies are within the
special territorial jurisdiction of the United States. n31 This reading of the third phrase is correct because that
phrase explicitly states that the lands in question are within one of the
states of the United States. Any place within one of the states of the United
States is of course within the United States. As for the Court’s holding that United States embassies
are under the concurrent jurisdiction of the United States Government, this
appears to be based on the Court’s determination that the United
States “exercises practical dominion” over its embassies,
which determination appears to be based, in turn, on the court’s
belief that embassies are “‘part of the territory of the
United States of America.’” Id. at 159 (quoting United
States v. Archer, 51 F. Supp. 708, 709 (S.D. Cal. 1943). We do not agree with Erdos’ holding for
three reasons. First, Erdos’ view that the first two
phrases [**53] of Section 7(3) refer to places outside
of United States territory is supported neither by the legislative history of
Section 7(3) and its precursors, nor by the (closely related) history of
judicial interpretation of these statutes. n32 This legislative and
interpretive history indicates that Congress intended these first two phrases
to refer to places within United States territory. n33 n32 Recourse to Section 7(3)’s legislative and
interpretive history is appropriate in this regard because, as is explained in
greater detail below, it is unclear from the face of the statute alone whether
the first two phrases of Section 7(3) refer to lands exclusively within the
territorial boundaries of the United States, or also to lands within the
territory of other nations. n33 This appeal to legislative and interpretive history implicitly
raises the question of which rule of statutory interpretation should be
employed for jurisdictional provisions such as Section 7(3). We concluded above
that the Bowman rule is inappropriate for the interpretation
of such provisions. The Erdos Court put forward the following rule:
“Where the power of Congress is clear, and the language of exercise is
broad, we perceive no duty to construe a statute narrowly.” 474 F.2d
at 160. (And, indeed, the court’s geographically broad interpretation
of the first two phrases of Section 7(3) — to refer to places outside
the United States — appears to have been based on this rule.) Although
this rule could be taken to exclude appeal to legislative history, this is not
what the Erdos Court intended: The Court announced the rule
only after first concluding that the legislative history of Section 7(3) is
“not perfectly clear.” Id. at 159. It could be argued that the Erdos Court’s own
characterization of the question presented to it, and the character of the
Court’s own rule strongly suggest that the Court should have employed
the standard interpretive rule governing extraterritoriality, viz., that
“Acts of Congress normally do not have extraterritorial application
unless such an intent is clearly manifested” Sale, 509 U.S.
at 188. Prima facie, it might appear that it makes little more
sense to apply this rule to Section 7(3) than it does to apply the Bowman rule to
it. Erdos demonstrates, however, that it is possible to apply an
interpretive presumption rule to Section 7(3). Specifically, after noting that
it is presented with the question of whether Section 7(3) should “be
given extraterritorial effect,” 474 F.2d at 159, the Court proceeded,
in accordance with its broad rule, to construe the first two phrases of Section
7(3) to reach lands located in foreign territory. But if this makes sense, then
it also makes sense to apply the standard rule to those same two phrases; i.e.,
to interpret those phrases narrowly so as to confine their reach to United
States territory. And, as noted in Subsection I.A above, the standard rule
permits courts to consult “all available means,” including
legislative history, to ascertain Congress’s intent. Sale, 509 U.S.
at 188. All of this said, we think that the better view is that neither Erdos’
broad construction rule nor the standard narrow construction rule should be
applied to a statute, the purpose of which is to define jurisdiction. Like the Bowman rule, the
standard rule was designed to apply to provisions that define offenses. When
presented with the task of interpreting jurisdictional statutes such as Section
7(3), courts should simply employ the standard tools of statutory
interpretation: analysis of text, structure and legislative history. [**54] [*207] The ultimate source of Section 7(3) is Article I, Section 8,
Clause 17 of the United States Constitution, which provides: The Congress shall
have Power … To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding ten Miles square) as may, by
Cession of particular States, and the Acceptance of Congress, become the Seat
of the Government of the United States, and to exercise like Authority over all
Places purchased by the Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings … U.S. Const., art. I, § 8, cl. 17. Clause 17 was
the primary basis of the oldest of Section 7(3)’s statutory
antecedents, viz., several provisions of the Act of April 30, 1790, entitled
“An Act for the Punishment of certain Crimes against the United
States.” Act of April 30, 1790, ch. 9, 1 Stat. at L. 112. Section 3 of
that Act, for example, provided “that if any person or persons shall,
within any fort, arsenal, dockyard, magazine, or in any other place or district
of country, under the sole and exclusive jurisdiction of the United States,
commit the crime [**55] of wilful
murder, such person or persons on being thereof convicted shall suffer
death.” n33 See United States v. Guiteau, 12 D.C.
498 (1882) (“It will be observed that, in designating the places in
which the commission of murder should be deemed a crime against the United
States, the legislature employed substantially, and to some extent, precisely
the language found in [Clause 17] which conferred upon it the power to exercise
exclusive legislation over certain places.”). n34 The expression “district of country” is a
reference to the prospective seat of the United States Government, which seat
is the concern of the first part of Clause 17. Section Three is merely one of the sections that served as an
antecedent of Section 7(3) because the Act did not contain a separate, purely
jurisdictional section such as Section 7(3). Rather, the jurisdictional
language derived from Clause 17 was repeated in various sections that provided
for the punishment of substantive offenses. For example, Section 7 of the Act
used the identical jurisdictional language in specifying the punishment of
manslaughter, as did Section 6 in specifying the punishment for misprision of
felony. It was not until the 1909 antecedent of Section 7(3) that this
jurisdictional language was separated out from the various substantive offenses
with which it had been combined and placed in a purely jurisdictional section.
See 42 Cong. Rec. 1188 (1908) (statement of Sen. Heyburn) (“It is
stated in the report that [Section 272 of the 1909 Act] was framed in order to
avoid repeating in each section of the chapter the territorial limitations in
connection with every separate section …”) [**56] This 1790 antecedent of Section 7(3) remained in force until 1874,
when it was codified — and, in the process, slightly altered
— as Section 5339 of Chapter Three, Title 70 of the Revised Statutes
of the United States. Chapter Three was entitled, “Crimes Arising
within the Maritime and Territorial Jurisdiction of the United
States.” Section 5339 provided in relevant part that “every
person who commits murder First. Within any fort, arsenal,
dock-yard, magazine, or in any other place or district of country, under the
exclusive jurisdiction of the United States … shall suffer
death.” 70 Rev. Stat., ch. 3, § 5339 (1874). See United
States v. Hewecker, 79 F. 59, 63 [*208]
(S.D.N.Y. 1896) (“The first clause of [Section 5339] is the same as
section 3 of the act of 1790 ….”). Section 5339 then served as the basis of the immediate precursor
of Section 7(3), viz., Section 272(3) of the Act of March 4, 1909 —
“An Act to codify, revise, and amend the penal laws of the United
States.” Section 272(3) differed from Section 7(3) only in not
including a reference to concurrent jurisdiction. Specifically, it provided
that the special territorial jurisdiction of the [**57]
United States included any lands reserved or acquired for the exclusive use of the United
States, and under the exclusive jurisdiction thereof, or any place purchased or
otherwise acquired by the United States by consent of the legislature of the
State in which the same shall be, for the erection of a fort, magazine,
dockyard, or other needful building. Act of March 4, 1909, c. 321, § 272, 35 Stat.
1143. (In this version of the provision, the influence of Clause 17 is even more
evident than it was in the previous two versions.) Finally, the Act of June 11, 1940, c. 323, 54 Stat. 304, amended
the 1909 version by striking ‘exclusive’ from the first
phrase and inserting ‘or concurrent’ between
‘exclusiveƠ and ‘jurisdiction’ in the
second phrase. No further changes have been made. As suggested by the strong influence exerted by Clause 17 on this
series of jurisdictional statutes, judicial interpretation of Clause 17 has
likewise influenced the interpretation of these statutes. Historically, the
most important interpretive question raised by Clause 17 has been whether, as
regards lands that are purchased by the consent of the States, the Federal
Government must exercise [**58] exclusive jurisdiction
over such lands; or, viewed from the opposite perspective, the question has
been whether the States are prohibited from retaining concurrent jurisdiction
over the lands transferred to the Federal Government. Strictly construed,
Clause 17 appears to permit the Federal Government to acquire — and
the State to relinquish — concurrent as well as exclusive
jurisdiction. Clause 17 merely grants Congress the power to exercise exclusive
jurisdiction over lands acquired by consent of the states. Given that a State
could refuse to sell the land — such that the Federal Government could
exercise no jurisdiction over it whatsoever — it would seem to follow
that the State has the power to place conditions on its agreement to sell the
land in question. Until well into the Twentieth Century, however, this is not the
construction of Clause 17 favored by the courts. Prior to 1885, several lower
federal courts had even held that Clause 17 “prescribes the only mode
by which [the United States] can acquire land as a sovereign power; and
therefore they hold only as an individual when they obtain it in any other
manner.” United States v. Penn, 48 F. 669, 670 (E.D.
Va. 1880) [**59] (emphasis added); see also United
States v. Tierney, 1 Bond 571, 28 F. Cas. 159, 160 (S.D. Ohio
1864) (stating that consent of the state legislature is “essential to
the exercise of exclusive jurisdiction by the United States”). In Fort
Leavenworth R. Co. v. Lowe, however, the Supreme Court rejected this
interpretation, and put in place the interpretation that would hold sway until
well into the Twentieth Century. Specifically, the Court held that
“when the title is acquired by purchase by consent of the legislatures
of the states, the federal jurisdiction is exclusive of all state
authority.” 114
U.S. 525, 532, 5 S. Ct. 995, 29 L. Ed. 264 (1885) (emphasis added). The
Court made clear, however, that this is not the exclusive procedure by which
the United States may acquire exclusive jurisdiction over land located within
the States. The United States may also reserve exclusive jurisdiction over such
land at the time a state is admitted into the Union. See 114 U.S. at 526
(“Congress might, undoubtedly, upon such admission, …
stipulate[] for retention of the political authority, dominion, and legislative
power of the United States [*209] over the reservation
….”). n35 [**60] This reigning
interpretation came to an end in 1937, when the Supreme Court, in James v.
Dravo Contracting Company, 302 U.S. 134, 148-50, 82
L. Ed. 155, 58 S. Ct. 208 (1937), held that Clause 17 permits the United States
to acquire merely concurrent jurisdiction over lands purchased by consent of
the States. n35 More fully, the Court observed that, the United States
possessed, on the adoption of the constitution, an immense domain lying north
and west of the Ohio river, acquired as the result of the revolutionary war,
from Great Britain, or by cessions from Virginia, Massachusetts, and
Connecticut; and, since the adoption of the constitution, they have, by cession
from foreign countries, come into the ownership of a territory still larger,
lying between the Mississippi river and the Pacific ocean, and out of these
territories several states have been formed and admitted into the Union. The
proprietorship of the United States in large tracts of land within these states
has remained after their admission. There has been, therefore, no necessity for
them to purchase or to condemn lands within those states, for forts, arsenals,
and other public buildings, unless they had disposed of what they afterwards
needed. Having the title, they have usually reserved certain portions of their
lands from sale or other disposition, for the uses of the Government. 114 U.S. at 532. [**61] Keeping this history of the judicial interpretation of Clause 17
in mind, we now take a closer look at Section 7(3) and its precursors. The
first thing to note about the (nearly identical) 1790 and 1874 precursors of
Section 7(3) is that they are consistent with the then reigning judicial
interpretation of Clause 17. The grammatical structure of these provisions
clearly indicates that the Federal Government is presumed to have exclusive
jurisdiction over forts, arsenals, dockyard, and magazines — the very
types of facilities mentioned by Clause 17. Second, each of these provisions implicitly described two distinct
categories of lands over which the United States exercised exclusive
jurisdiction: those acquired in the manner provided for in Clause 17, and those
acquired in other ways. Third, each of the provisions limited the Federal
Government’s exercise of legislative jurisdiction to lands over which
the Federal Government had exclusive jurisdiction. This fact virtually
guarantees that neither of these provisions was intended by Congress to extend
to offenses committed in foreign territory. It is inconceivable that those
earlier Congresses believed that the United States had [**62]
exclusive jurisdiction over any parcel of foreign territory. Indeed, the then
reigning interpretation of Clause 17 appears to have stemmed from a fundamental
presupposition of those times — one that was not to be relinquished
until 1937 in Dravo: that a government has the authority to exercise
legislative jurisdiction over a given piece of land only if it has exclusive
jurisdiction thereof. See The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116,
136, 3 L. Ed. 287 (1812) (Marshall, C.J.) (“The jurisdiction of the
nation, within its own territory, is necessarily exclusive and absolute; it is
susceptible of no limitation not imposed by itself.”). This brings us to the 1909 precursor of Section 7(3), viz.,
Section 272(3) of the Act of March 4, 1909. The first thing to notice about
this provision is that it made much more explicit the fact — implicit in
the two earlier provisions — that there are two basic categories of
land in the special territorial jurisdiction of the United States: those
acquired in accordance with the procedure specified in Clause 17, and those
acquired in other ways. Second, and more important, the language alone of Section 272(3)
— unlike the [**63] language of the two earlier versions
— does not strictly specify that all the covered lands must be under
the exclusive jurisdiction of the United States. Rather, although Section
272(3) specifies that lands acquired in ways other than that provided for in
Clause 17 must be under the exclusive jurisdiction of the United States, the
third phrase, which concerns lands acquired as provided for in Clause 17,
contains no such “exclusive jurisdiction” requirement. Hence,
it is theoretically [*210] possible that the 60th Congress
intended this phrase to cover lands over which the United States exercises only
concurrent jurisdiction. There is a fatal flaw in this suggestion, however:
Such an interpretation of the third phrase would be inconsistent with the
reigning interpretation of Clause 17. n36 Indeed, in light of this reigning
interpretation — not to mention the fundamental presupposition (on
which that interpretation was based) that legislative jurisdiction based on
land requires exclusive jurisdiction — it is far more likely that a
reference to exclusive jurisdiction was omitted from the third phrase because
everyone assumed that lands acquired by the consent of the states were
necessarily [**64] under the exclusive jurisdiction of the
United States. Correlatively, the 60th Congress included an exclusive
jurisdiction requirement in the first part of Section 272(3) (pertaining to
lands acquired by means other than that provided for in Clause 17) precisely
because there existed for such lands no equivalent of the reigning
interpretation of Clause 17. n37 n36 Indeed, the Committee of Revision reported that it had
“endeavored to keep as closely as possible within the declaration of
the [Supreme] Court as to what the law is.” 42 Cong. Rec. 1187 (1908)
(statement of Sen. Heyburn). n37 There remains the relatively minor question of why an explicit
reference to lands “reserved” for the use of the United
States was added to the first part of Section 272(3). The answer has to do with
the precursors of 18 U.S.C. § 13, the so-called
“assimilated crimes” statute. The original version of this
statute appeared as Section 3 of the Act of March 3, 1825, 4 Stat. at L. 115,
and a revised version appeared as Section 5391 of the Revised Statutes of the
United States. Section 5391 provided in relevant part: If any offense be
committed in any place which has been, or may hereafter be, ceded to and under
the jurisdiction of the United States, which offense is not prohibited by, or
the punishment thereof is not specially provided for, by any law of the United
States, such offense shall be liable to, and receive, the same punishment as
the laws of the State in which such place is situated … 70 Rev. Stat. § 5391 (1874) (emphasis added).
The legislative history of the 1909 Act reports that the courts had held that, this law did not apply
to any territory that had been obtained since 1825 except by cession, and it
was discovered that a great deal of property, for military reservations, for
arsenals, post-offices, custom-houses, quarantine stations, and court-houses,
had been acquired by reservation; that the United States, owning the land,
existing in territorial form, would reserve a portion of it for Federal
purposes, and then admit the State to the Union. 42 Cong. Rec. 584 (1908) (statement of Rep. Sherley). To remedy this problem. Congress amended Section 5391 to read as
follows: “Whoever, within the territorial limits of any State,
organized Territory, or District, but within or upon any of the places now
existing or hereafter reserved or acquired, described in Section 272 of this
act,” shall commit an act which is not criminalized by the United
States, but which is criminalized by the State, shall be prosecuted under the
State law. Act of March 4, 1909, ch. 321, § 289, 35 Stat.
1145. Reference was made to Section 272 because (i) a crime covered by the
“assimilated crime” method must be both within the territory
of a State and within the jurisdiction of the United States, and (ii) 272 was
the section setting out the limits of the jurisdiction of the United States. [**65] In sum, Section 272(3), like its two predecessors, limited
legislative jurisdiction by the Federal Government to lands over which the
Federal Government enjoyed exclusive jurisdiction. Therefore, it no more
concerned lands in foreign territory than did its two predecessors. We come, finally, to the 1940 revision of Section 272(3) (viz.,
Section 7(3) itself) — which, as noted, extended the reach of the
statute to lands over which the United States exercises merely concurrent
jurisdiction. The House Report concerning this revision explicitly states that
the revision was prompted by Dravo’s holding that Clause 17 permits
states who consensually transfer lands to the United States to retain
concurrent jurisdiction thereof. See H.R. Rep. No. 76-1 623, at 1 (1940) (“Prior
to the decision of the Supreme Court in James v. Dravo Contracting Company (302 U.S. 134, 82 [*211] L.
Ed. 155, 58 S. Ct. 208) (December 1937), it was the accepted view that the
United States acquired exclusive jurisdiction over any lands purchased with the
consent of the State for any of the purposes enumerated in article I, section
8, clause 17 of the Constitution, and that any provision of a State statute
retaining partial or [**66] concurrent
jurisdiction was inoperable. In the Dravo case it was held that a State may
properly retain partial or concurrent jurisdiction.”) The 76th
Congress believed that this holding necessitated a revision of Section 272(3)
because it believed that Section 272(3) “limited the criminal
jurisdiction of the Federal Government to such Federal reservations in respect
to which the United States had acquired exclusive jurisdiction.” Id. n38 As
such, Section 272(3) would not apply to lands over which the States chose to
retain concurrent jurisdiction. Hence, the purpose of the 1940 revision was
“simply [to] restore[] to the Federal Government the jurisdiction it
was recognized as having until the Dravo decision was handed down.” Id. n38 This statement demonstrates that the 76th Congress believed
that Section 272(3) did not apply to lands within foreign territory. Again, it
is inconceivable that the 76th Congress believed that the United States
exercised exclusive jurisdiction over any parcel of foreign territory. [**67] This reference to “restoration” cannot be taken
literally. The revision did effect a change. Specifically, “the most
significant effect of the bill is to grant Federal courts concurrent criminal jurisdiction
on reservations where the United States does not have exclusive
jurisdiction.” Id. Hence, in saying that the Bill
“restores” to the Federal Government the jurisdiction it had
prior to Dravo, the Report appears to be saying that the Federal Government
will henceforth be able to exercise legislative jurisdiction over lands
acquired by consent of the states where the states retain concurrent
jurisdiction — just as it had been able to exercise legislative
jurisdiction over lands acquired by consent of the states where the states did
not retain concurrent jurisdiction. At the very least, given that Section
272(3) did not apply to lands in foreign territory, if the 76th Congress
intended the Bill to extend the reach of that statute to lands in foreign
territory, surely it would not have said that the purpose of the Bill was
“simply [to] restore[]” the jurisdiction the Federal
Government had enjoyed prior to Dravo. Nor is there the slightest mention of
such an extraterritorial [**68] extension in
the Act’s legislative history. n39 n39 There remains a relatively minor puzzle concerning the precise
means chosen by the 76th Congress to effectuate its purpose of
“restoring” the Federal Government’s pre-Dravo
jurisdiction. As noted, Section 272(3) consisted of two parts. The third phrase
delimited a category of lands acquired in the manner provided for in Clause 17,
while the first two phrases delimited a category of lands acquired in other
ways. Dravo concerned lands referred to by the third phrase, i.e.,
lands acquired by the Federal Government by the consent of West Virginia. See Dravo, 302 U.S.
at 143. As such, Dravo, strictly speaking, had no effect on the
first two phrases of Section 272(3). Hence, if Congress were concerned to do no
more than remedy the specific damage done by Dravo, one would
have expected Congress to amend 272(3) simply by adding an “exclusive
or concurrent jurisdiction” requirement to the third phrase —
leaving the first two phrases unaltered. This is not what Congress did,
however. Rather, Congress left the third phrase unaltered and added a reference
to concurrent jurisdiction to the first part of Section 272(3). The simplest explanation for this decision is that Congress
(mistakenly) believed that the second phrase of 272(3) related to the third
phrase as well as the first phrase, such that adding
‘concurrent’ to the second phrase had the effect of altering
the third phrase. A more plausible explanation is that the amendment was chosen
against a background in which it was assumed that the two parts of Section
272(3) each required exclusive jurisdiction — despite the fact that
this requirement was not mentioned in the second part. In light of this assumption,
it would have been entirely natural to effect an implicit change in the second
part by making an explicit change in the first part. Admittedly, however, this explanation is not entirely satisfying
either, because it does not address the substantive effect of the alteration on
the first part of Section 273(2). The insertion of the reference to concurrent
jurisdiction in the first part had the effect of permitting the Federal
Government to exercise legislative jurisdiction over lands acquired by means
other than that provided for in Clause 17, and over which the Federal
Government exercised merely concurrent jurisdiction — an effect not
strictly required to restore matters to their pre-Dravo status. The most
plausible explanation for this alteration has to do with that fundamental
assumption that underlay both the pre-1940 versions of the statute and the
pre-Dravo interpretation of Clause 17: the assumption that a Government can
exercise legislative jurisdiction over a piece of land only if it enjoys
exclusive jurisdiction over it. This assumption thus underlay both parts of
Section 272(3). In reversing the reigning interpretation of Clause 17, the
Dravo Court also called into question this fundamental assumption. In holding
that West Virginia could retain concurrent jurisdiction over land it had
conveyed to the United States, Dravo held that there was nothing amiss with the
Federal Government exercising concurrent jurisdiction over this very same land.
As such, there was no longer any reason to limit either of the two parts of
Section 273(2) to lands over which the Federal Government exercises exclusive
jurisdiction. This explains why Congress did not respond to Dravo simply by
adding an “exclusive or concurrent jurisdiction” clause to
the third phrase of Section 272(3). Such an amendment would have established a
baseless distinction between the lands delimited by this phrase and the lands
delimited by the first two phrases. No plausible rationale could be advanced
for permitting federal jurisdiction over lands acquired by consent of the state
where the state retained concurrent jurisdiction, but not permitting it over
lands reserved by the United States upon admitting one of the states to the
Union where the reservation provided for the United States to retain concurrent
jurisdiction thereof. [**69] [*212] In sum, the legislative and interpretive history of Section 7(3)
strongly supports Odeh’s position that Section 7(3) does not concern
lands outside the United States. A second flaw of Erdos’ handling of
Section 7(3) concerns the reasoning supporting the Court’s conclusion
that the United States has concurrent jurisdiction over United States embassy
premises. This conclusion appears to be based on the Court’s application
of the following test: “The test, as to property within or without the
United States, is one of practical usage and dominion exercised over the
embassy or other federal establishment by the United States
Government.” 474 F.2d at 159. Although the Court is silent about the
provenance of this test, it appears to be the Court’s own gloss of the
“exclusive or concurrent jurisdiction” requirement of the
second phrase of Section 7(3). The basic problem with this gloss is that, in light
of the preceding account of Section 7(3)’s legislative and
interpretive history, this gloss appears to be nothing more than an unnecessary
exercise of judicial speculation. Instead of giving due attention to the 1940
House Report’s explanation for the insertion of the [**70] term
Ɵconcurrent’ into the 1909 version of the statute, the Erdos Court
simply presumed that, “concurrent jurisdiction,” means the
practical exercise of dominion over land — whatever, exactly, that, in
turn, means. The preceding examination of Section 7(3)’s legislative
and interpretive history shows quite clearly that “concurrent
jurisdiction” refers to a state of affairs in which the Federal
Government and one of the States of the United States exercise legislative
jurisdiction over a portion of United States territory. And, needless to say,
lands in foreign territory are neither part of the territory of the United
States nor part of the territory of any State of the United States. Furthermore, even assuming that Erdos’
“practical dominion” test were unproblematic, the
Court’s application of this test is undermined by its apparent
reliance on a false assumption, viz., that United States embassy property is
“‘part of the territory of the United States of
America.’” Id. at 159 (quoting United States v.
Archer, 51 F. Supp. 708, 709 (S.D. Cal. 1943). The Ninth Circuit
— i.e., Archer’s circuit — implicitly
contradicted Archer when [**71] it stated that
“[a] United States embassy … remains the territory of the
receiving state, and does not constitute territory of the United
States.” McKeel v. Islamic Republic of Iran, 722 F.2d
582, 588 (9th Cir. 1983); see also Poole v. Brown, 706 F.
Supp. 74, 76 (D.D.C. 1989) (same); Jordan J. Paust, Non-Extraterritoriality of
“Special Territorial Jurisdiction” [*213] of
the United States: Forgotten History and the Errors of Erdos 24 Yale J.
Int’l L. 305, 310-11 & nn.16-21, 312 n.28 (citing and quoting
sources) (same). Third, Erdos’ holding that the United States has
concurrent jurisdiction over United States embassy premises is inconsistent
with international law. To understand why this is the case, it is useful to
begin with the Government’s attempt to bolster this holding. The
Government contends that this holding is supported by the following passage
from the Restatement: ‘Diplomatic
and consular premises are immune from search, requisition, attachment, or
execution. Premises are also immune from taxation. Whether they are immune from
other means of law enforcement, or from the receiving state’s
jurisdiction generally, [**72] has not been
authoritatively addressed. Applying general principles, this section declares
that premises and related property are subject to the host state’s
jurisdiction to prescribe, adjudicate, or enforce law except by means or in
circumstances where an exercise of jurisdiction would violate the premises or interfere
with their use for the designated purposes. For example, fire codes, noise
regulations, and similar rules of general applicability apply to diplomatic and
consular premises as to other premises. Inviolability, and the sovereign
immunity of the sending state from adjudication and judicial enforcement,
largely immunize the premises from the exercise of jurisdiction by the
receiving state to adjudicate or enforce law without the consent of the sending
state.’ Gov’t Memo at 24-25 (quoting Restatement
§ 466, cmt. c) (emphasis added by the Government). The
Government’s point appears to be that, because the receiving state
cannot exercise its territorial jurisdiction over diplomatic premises, it
follows that the sending state can exercise its territorial jurisdiction over
these premises. The problem with this point is that it is largely undermined by
[**73] the very section of the Restatement
from which the Government draws the preceding quotation. This section states
that to say “that premises are inviolable does not mean that they are
extraterritorial. Acts committed on those premises are within the territorial
jurisdiction of the receiving state, and the mission is required to observe
local law … See Comment C.” Restatement
§ 466, cmt. a; n40 see also id.
§ 466, Reporter’s Note 2 (“In 1977,
following occupation of the Yugoslav Mission to the United Nations by
terrorists, New York City police and the FBI prevented armed Yugoslavian
officials from retaking the Mission… The State Department denied
Yugoslavian assertions that the mission was extraterritorial.”). n41 n40 Comment c is the very subsection of Section 466 quoted by the
Government. n41 We note parenthetically that this doctrine that the
inviolability of embassy premises does not render such premises United States
territory closely parallels the accepted view of the status of Federal
facilities located within the States of the United States where the Federal
Government has not explicitly reserved or acquired exclusive or concurrent
jurisdiction. See Surplus Trading Co. v. Cook, 281 U.S. 647, 650, 74 L.
Ed. 1091, 50 S. Ct. 455 (1930) (“It is not unusual for the United
States to own within a state lands which are set apart and used for public
purposes. Such ownership and use without more does not withdraw the lands from
the jurisdiction of the state. On the contrary, the lands remain part of her
territory and within the operation of her laws, save that the latter cannot
affect the title of the United States or embarrass it in using the lands or
interfere with its right of disposal.”). [**74] When one considers the practical consequences of claiming that the
United States has concurrent territorial jurisdiction over United States
embassy premises, it comes as no surprise that the Restatement does not support
this claim. Section 7(3) speaks of concurrent jurisdiction over
“lands.” As such, it concerns jurisdiction based on the
subjective territorial principle. Such jurisdiction is based on a
nation’s [*214] sovereignty over its own
territory. It is inherent in the very idea of national sovereignty that a
nation has exclusive territorial jurisdiction over its own territory. See The
Schooner Exchange, 11 U.S. (7 Cranch) at 136. It is precisely
because the States that comprise the United States are not independent,
sovereign nations, but rather political sub-units of the United States, that it
is possible for the federal Government and a state Government to have
concurrent territorial jurisdiction over a single piece of territory. See North
Dakota v. United States, 495 U.S. 423, 429, 109 L.
Ed. 2d 420, 110 S. Ct. 1986 (1990) (“A territory under concurrent
jurisdiction is generally subject to the plenary authority of both the Federal
Government and the State for the purposes [**75] of
the regulation of liquor as well as the exercise of other police
powers.”) (emphasis added). Therefore, to say that the United States
and another independent, sovereign nation, say, Kenya, have concurrent
territorial jurisdiction over the United States Embassy premises in Nairobi is
to say that these premises are “subject to the plenary authority of
both the United States and Kenya. Such a state of affairs is clearly
inconsistent with the very idea of national sovereignty. n42 n42 In view of this result, it is unsurprising that the Restatement’s
view (that embassy territory is territory of the receiving state) is shared by
numerous courts and commentators. See Paust, Errors of Erdos, at 310-11
& nn.16-21, 312 n.28 (citing and quoting sources). We hasten to emphasize that we are not contending that concurrent
jurisdiction per se by two sovereign nations is inconsistent with international
law. Under various circumstances, concurrent jurisdiction is permitted by
international law. For example, [**76] if Nation
A’s jurisdiction over a particular offense is based on the subjective
territorial principle, Nation B could have jurisdiction over the same offense
based on one or more of the five jurisdictional principles on which
extraterritorial jurisdiction may be based. See Laker Airways Ltd. v.
Sabena, Belgian World Airlines, 235 U.S. App. D.C. 207, 731 F.2d 909,
922 (D.C. Cir. 1984) (“Because two or more states may have legitimate
interests in prescribing governing law over a particular controversy, these
jurisdictional bases are not mutually exclusive. For example, when the national
of one state causes substantial effects in another state, both states may
potentially have jurisdiction to prescribe governing law. Thus, under
international law, territoriality and nationality often give rise to concurrent
jurisdiction.”) (citations omitted); Restatement
§ 403, cmt. d. Having concluded that an interpretation of Section 7(3) under
which the United States has concurrent jurisdiction over United States embassy
premises would violate international law, our work is not finished. It is
well-established that Congress has the power to override international law. See
United States v. Yunis, 288 U.S. App. D.C. 129, 924 F.2d 1086, 1091
(D.C. Cir. 1991); [**77] Restatement
§ 402, cmt. i. Courts are to presume, however, that Congress
generally intends its statutes to be consistent with international law. See Murray
v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18, 2 L.
Ed. 208 (1804) (stating that “an Act of Congress ought never to be
construed to violate the law of nations if any other possible construction
remains”). This presumption can be overcome only by a clear statement
of intent to override international law. See Cook v. United States, 288 U.S. 102, 119-20, 77
L. Ed. 641, 53 S. Ct. 305 (1933) (stating that “[a] treaty will not be
deemed to have been abrogated or modified by a later statute, unless such a
purpose on the part of Congress has been clearly expressed”); United
States v. Palestinian Liberation Org., 695 F. Supp. 1456,
1465, 1468 (S.D.N.Y. 1988) (same). No such expression of intent appears in
either the text or the legislative history of Section 7(3). In light of the foregoing considerations, we find that United
States embassy premises in foreign countries are not “lands reserved
or acquired for the use of the United States, and under the exclusive or [*215]
concurrent jurisdiction thereof,” under 18 U.S.C.
§ 7 [**78] (3), and thus
are not included within “the special territorial
jurisdiction” of the United States. Accordingly, we further find that
18 U.S.C. § 1111, which penalizes murder within “the
special maritime and territorial jurisdiction of the United States,”
does not apply to murders committed on United States embassy premises. n43
Therefore, as Counts 234 and 235 of the Indictment charge Odeh and his
co-defendants with the commission of murder on the premises of the United
States Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania — under
18 U.S.C. § 1111 — Odeh’s motion to dismiss
Counts 234 and 235 for lack of jurisdiction is granted. n44 n43 We note parenthetically that a reading of Section 7(3), and
thereby Section 1111, under which they do not extend to lands within foreign
territory will not significantly diminish the Government’s ability to
prosecute the conduct alleged in this case. In theory, such conduct could be
reached by statutes based on extraterritorial jurisdictional principles other
than the subjective territorial principle. And, indeed, many such statutes have
already been enacted. To identify (many of) them, one need look no further than
the Indictment. Specifically, Counts 7 and 8 rely on 18 U.S.C.
§ 844(f)(3) — the extraterritorial application of
which is justified by the protective principle — to reach all of the
deaths caused by the two embassy bombings. Similarly, Counts 9 and 10 rely on
18 U.S.C. § 2332a(a)(1) and (a)(3) — the
extraterritorial application of which are justified, respectively, by the
passive personality principle and the protective principle — to reach
all of the deaths caused by the two embassy bombings. Again, Counts 11-233 rely
on 18 U.S.C. § 930(c) — the extraterritorial
application of which is based on the protective principle — to reach
all of the deaths caused by the two embassy bombings. Counts 236 and 237 rely
on 18 U.S.C. § 1114 — the extraterritorial
application of which is based on the protective principle — to reach
the murders of officers and employees of the United States in connection with
the two embassy bombings. Similarly Counts 238 and 239 rely on 18 U.S.C.
§ 1116 — the extraterritorial application of which
is based on the universality principle, see United States v. Layton, 509 F.
Supp. 212, 221-24 (N.D. Cal. 1981) — to reach the murders of
Internationally Protected Persons in connection with the two embassy bombings. Indeed, the Government conceded at oral argument that, if Counts
234 and 235 were dismissed, “there would be no evidence which would
not be admissible and no conduct which would not be covered by other counts in
the indictment.” Tr. Oral Arg. at 36-37 (Feb. 29, 2000). [**79] n44 We note that this conclusion has no effect on our earlier
conclusions that Sections 930(c) and 1114 apply extraterritorially. The
possibility of such an effect is presented by the fact that each of these
sections includes a reference to Section 1111. Specifically, Section 930(c)
specifies that a person found guilty of the offenses described therein
“shall be punished as provided in section 1111 ….”
18 U.S.C. § 930(c). Section 1114 specifies that a person
found guilty of the offenses described therein “shall be punished (1)
in the case of murder, as provided under section 1111.” 18 U.S.C.
§ 1114. The question thus arises whether these references to
Section 1111 are limited to the penalties specified in Section 1111(b), or also
are meant to include Section 1111(b)’s jurisdictional limitation to
“the special maritime and territorial jurisdiction of the United
States.” For the following two reasons, we think that Congress
intended to refer only to Section 1111(b)’s penalty provisions. First,
the referring language itself indicates that only Section 1111(b)’s
penalty provisions are being referred to. Second, a reading of Sections 930(c)
and 1114 under which they were also intended to refer to Section
1111(b)’s jurisdictional provision “would be at odds with the
long-established understanding of [Section] 1114,” United States v.
Brunson, 549 F.2d 348, 352 n.1 (5th Cir. 1977) (citing United States
v. Rivera, 513 F.2d 519, 521 n.1 (2d Cir.), cert. denied, 423 U.S. 948, 46
L. Ed. 2d 284, 96 S. Ct. 367 (1975)), and Section 930(c). [**80] 2. 18 U.S.C. § 114 The Indictment predicates Counts 240 n45 and 241 n46 on Section
114. Section 114 criminalizes maiming within the special [*216]
maritime and territorial jurisdiction of the United States. Accordingly, the
preceding analysis of Section 1111 applies, mutatis mutandis, to it. Therefore,
Odeh’s motion to dismiss Counts 240 and 241 for lack of jurisdiction
is likewise granted. n47 n45 Count 240 charges that, “on or about August 7, 1998,
… within the special maritime and territorial jurisdiction of the
United States, [Odeh and others maimed] persons on and within the compound of
the United States Embassy in Nairobi, Kenya.” n46 Count 241 charges that, “on or about August 7, 1998,
… within the special maritime and territorial jurisdiction of the
United States, [Odeh and others maimed] persons on and within the compound of
the United States Embassy in Dar es Salaam, Tanzania.” n47 Just as our conclusion that Section 1111 does not apply to
murders committed on United States embassy premises abroad should not
significantly hamper the Government’s ability to prosecute such
murders, so our conclusion here that Section 114 does not apply to maimings
committed on United States embassy premises abroad should not significantly
hamper the Government’s ability to prosecute such maimings. When
questioned about this issue at oral argument, the Government responded that, if
the Counts based on Section 114 were dismissed, “there might be a
small quantum of evidence that may or may not get before the jury
….” Tr. Oral Arg. at 37. [**81] II. Fifth Amendment Due Process Odeh argues that application of several of the statutes relied on
in the Indictment to the extraterritorial conduct of a foreign national such as
himself violates his rights under the Due Process Clause of the Fifth
Amendment. See Larsen, 952 F.2d at 1100 (“Congress is empowered to
attach extraterritorial effect to its penal statutes so long as the statute
does not violate the due process clause of the Fifth Amendment.”).
More specifically, Odeh argues that “there are several, related norms
of due process” that would be violated by such application: (1) the
rule of lenity, (2) the right to fair warning, and (3) the requirement of a
sufficient nexus between his alleged conduct and the United States.
Odeh’s Reply Memo. at 18. We consider his arguments regarding each of
these three aspects of due process seriatim. A. Rule of Lenity Odeh argues that, as “ 18 U.S.C.
§§ 844(f), (h) and (n); 2155, 930, 1111; 1114; 114;
and 924(c),” “fail to clearly proscribe the conduct of a
foreign national on foreign soil,” the rule of lenity requires the
Court to dismiss the counts based on these statutes. [**82]
Odeh’s Memo. at 22-23. Similarly, Odeh appears to argue that, because
18 U.S.C. §§ 1116 and 2332a are “ambiguous
with regard to enforcement vis-a-vis foreign nationals,” the counts
based on them should likewise be dismissed. Id. at 24. Under the rule of lenity, an ambiguous criminal statute is to be
strictly construed against the Government. See United States v. Lanier, 520 U.S. 259, 266, 137 L.
Ed. 2d 432, 117 S. Ct. 1219 (1997); United States v. Bass, 404 U.S. 336, 347, 30 L.
Ed. 2d 488, 92 S. Ct. 515 (1971) (“In various ways over the years, we
have stated that when a choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in language
that is clear and definite.”). As to the threshold determination of
whether the statute in question is ambiguous, the Supreme Court has
consistently held that “the rule of lenity applies only if, after
seizing everything from which aid can be derived, [a court] can make no more
than a guess as to what Congress intended.” Holloway v. United
States, 526 U.S. 1,
119 S. Ct. 966, 972, 143 L. Ed. 2d 1 (1999) (citations and internal quotations [**83]
omitted). As to Sections 1111 and 114, we have already found that the counts
based on these statues (viz., Counts 234, 235, 240, and 241) should be
dismissed, and Odeh’s rule cf lenity argument as to them is of course
moot. As for Sections 844, 924, 930, 1114, and 2155, having found that
each of these statutes — viewed through the lens provided by Bowman —
clearly applies extraterritorially (i.e., having found that none of them is the
least bit ambiguous in this regard), we conclude that the rule of lenity is
inapplicable to them. n48 Therefore, we deny Odeh’s [*217]
motion to dismiss the counts predicated on these statutes (viz., Counts 5-8,
11-233, 236-237, and 242-244) insofar as this motion depends on his rule of
lenity argument. n48 The Government contends that “the rule of lenity
simply does not apply to questions of jurisdiction.” Gov’t
Memo. at 31. In support of this contention, the Government quotes the Bowman
Court’s claim that “‘nor can the much-quoted rule
that criminal statutes are to be strictly construed avail.’” Id. at 32 (quoting
Bowman, 260 U.S. at 102). Yet Bowman’s handling
of the rule of lenity actually supports the opposite position, i.e., that the
rule of lenity can apply to the question of whether a statute applies
extraterritorially. After making the quoted statement, the Bowman Court went
on to say that penal statutes “are not to be strained either way. It
needs no forced construction to interpret section 35 as we have done [i.e., as
applying extraterritorially].” Bowman, 260 U.S. at 102.
Hence, the Court appears to have been saying merely that the rule of lenity was
unavailing because the particular statute was not ambiguous. This claim
obviously presupposes that it makes sense to apply the rule of lenity to
questions of jurisdiction. [**84] This brings us to Section 1116, on which Counts 238 n49 and 239
n50 of the Indictment are predicated. Section 1116(a) provides that,
“whoever kills or attempts to kill a foreign official, official guest,
or internationally protected person, shall be punished [as further
provided].” 18 U.S.C. § 1116(a). n51 Section 1116(c)
provides in relevant part that, “if the victim of an offense under
subsection (a) is an internationally protected person outside the United
States, the United States may exercise jurisdiction over the offense if (1) the
victim is a representative, officer, employee, or agent of the United States
….” 18 U.S.C. § 1116(c) (emphasis added).
Given (i) that Section 1116(c) explicitly provides for jurisdiction over
murders and attempted murders of certain United States officials that take
place in foreign territory, and (ii) that, accordingly, foreign nationals are
in at least as good a position as are United States nationals to carry out such
murders and attempted murders, we find, under Bowman, that
Section 1116(c) unambiguously applies to offenders who are foreign nationals. n49 Count 238 charges that, “on or about August 7, 1998,
in Nairobi, Kenya … [Odeh and others] did murder and attempt to murder
the Ambassador of the United States to Kenya, and other representatives,
officers, employees and agents of the United States Government
….” [**85] n50 Count 239 charges that, “on or about August 7, 1998,
in Dar es Salaam, Tanzania … [Odeh and others] did attempt to murder
the Ambassador of the United States to Tanzania, and other representatives,
officers, employees and agents of the United States Government
….” n51 An “internationally protected person” is (A) a Chief of State
or the political equivalent, head of government, or Foreign Minister whenever
such person is in a country other than his own and any member of his family
accompanying him; or (B) any other
representative, officer, employee, or agent of the United States Government, a
foreign government, or international organization who at the time and place
concerned is entitled pursuant to international law to special protection
against attack upon his person, freedom, or dignity, and any member of his
family then forming part of his household. 18 U.S.C. § 1116(b)(4). In light of this finding, we further find that the rule of lenity
is inapplicable to Section 1116. We therefore deny Odeh’s motion to
dismiss the counts predicated [**86] on Section 1116 (viz., Counts
238 and 239) insofar as this motion depends on his rule of lenity argument. We come, finally, to Section 2332a, on which the Indictment
predicates Counts 4, n52 9, n53 and 10. n54 Section 2332a(a) provides in relevant
part: [*218] A
person who, without lawful authority, uses, threatens, or attempts or conspires
to use, a weapon of mass destruction …, including any biological
agent, toxin, or vector … (1) against a national of the United States
while such national is outside of the United States; … or (3) against
any property that is owned, leased or used by the United States or by any
department or agency of the United States, whether the property is within or
outside of the United States, shall [be punished as further provided]. 18 U.S.C. § 2332a(a) (emphasis added).
Given (i) that Section 2332a(a) explicitly provides for jurisdiction over
attacks on United States property and nationals that take place outside the
United States, and (ii) that, accordingly, foreign nationals are in at least as
good a position as are United States nationals to carry out such attacks, we
find, under Bowman, that Section [**87] 2332a(a)
unambiguously applies to offenders who are foreign nationals. n52 Count 4 charges Odeh and others with “conspiring
… to “(i) bomb the American embassies in Nairobi, Kenya, and
Dar es Salaam, Tanzania, and employees of the American Government stationed at
those embassies, and (2) attack American military facilities in the Gulf region
and Horn of Africa, and members of the American military stationed in Saudi
Arabia, Yemen, Somalia and elsewhere with bombs.” n53 Count 9 charges Odeh and others with “attacking the
American embassy in Nairobi, Kenya, and employees of the American Government
stationed at this embassy with a bomb.” n54 Count 10 charges Odeh and others with “attacking the
American embassy in Dar es Salaam, Tanzania, and employees of the American
Government stationed at this embassy with a bomb.” In light of this finding, we further find that the rule of lenity
is inapplicable to Section 2332a. We therefore deny Odeh’s motion to
dismiss the counts predicated on Section 2332a [**88] (viz., Counts
4, 9, and 10) insofar as this motion depends on his rule of lenity argument. B. Right to Fair Warning Odeh argues that application of Sections 844(f), (h), and (n);
924(c); 930(c); and 2155 to the extraterritorial conduct he is alleged to have
engaged in would violate his due process right to a fair warning. See
Odeh’s Memo. at 26. The Supreme Court has held that those subject to
the law have a right to a “fair warning … in language that
the common world will understand, of what the law intends to do if a certain
line is passed. To make the warning fair, so far as possible the line should be
clear.” McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct.
340, 75 L. Ed. 816 (1931) (Holmes, J.); see also Lanier, 520 U.S. at 265
(“No man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed.”) (citations and
internal quotations omitted). Odeh argues that, as his “counsel has
found no cases that uphold, or even discuss, the application” of these
Sections to extraterritorial conduct, “no reasonable foreign citizen
would have known he risked a death sentence for” engaging in the
conduct proscribed by these Sections [**89] while in foreign
territory. Odeh’s Memo, at 26-27. The Government responds that “while Odeh may not have
known [the] breadth of the statutory framework that would serve as the basis
for the charges against him — few defendants do — there is no
room for him to suggest that he has suddenly learned that mass murder was
illegal in the United States or anywhere else.” Gov’t Memo.
at 34. We agree. Cf. United States v. Royal Caribbean Cruises Ltd., 11 F.
Supp. 2d 1358, 1366 (S.D. Fla. 1998) (giving extraterritorial effect to 18
U.S.C. § 1001 (penalizing false statements), and noting that
“contending a due process violation by a statute … which
penalizes the inherently bad conduct of lying to the Government about something
important is unconvincing”). n55 n55 The Government also argues that “Odeh cannot be
surprised to learn that his conduct was criminal under the laws of every
civilized nation, and [thus] he has no right to complain about the particular forum
in which he is brought to trial.” Gov’t Memo. at 34. We
likewise find this argument persuasive. Cf. United States v.
Martinez-Hidalgo, 28 V.I. 365, 993 F.2d 1052, 1056 (3d Cir. 1993)
(“Inasmuch as the trafficking of narcotics is condemned universally by
law-abiding nations, we see no reason to conclude that it is
‘fundamentally unfair’ for Congress to provide for the
punishment of persons apprehended with narcotics on the high seas.”);
Christopher L. Blakesley, Extraterritorial Jurisdiction, in M. Cherif Bassiouni
(ed.), International Criminal Law 72, 70 (2d ed. 1999) (noting that terrorist
violence includes “wanton violence against innocent
civilians,” and that this offense is “condemned by virtually
all domestic law”); id. at 73 (“All nations condemn,
prosecute and punish terrorist violence, when perpetrated against them or their
nationals.”). [**90] [*219] In sum, we find that application of Sections 844(f), (h), and (n);
924(c); 930(c), and 2155 to Odeh’s alleged extraterritorial conduct
does not violate his right to a fair warning. Therefore, we deny his motion to
dismiss the counts based on these statutes (viz., Counts 5-8, 11-233, and
242-244) insofar as this motion depends on his fair warning argument. C. Sufficient Nexus Odeh contends that, “as [he] is Jordanian, and the acts
alleged in the indictment all took place on foreign soil, the connection
between [him] and the United States is weak,” Odeh’s Reply
Memo. at 18-19, i.e., the nexus between him and the United States is
insufficient. n56 n56 Odeh fails to specify which statutes he has in mind. We assume
that he is referring to the statutes identified in his fair warning argument,
viz., Sections 844, 924, 930, and 2155. Few cases have addressed this sufficient nexus requirement. See
Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth
Amendment Due Process, 105 Harv. L. Rev. 1217, 1219 n. 12 (1992) [**91]
(stating that “few cases seriously discuss the constitutional question
[of whether the Due Process Clause limits the extraterritorial application of
federal statutes], and none invalidate application of federal law on these
grounds”). The most extensive discussion of the issue appears in United
States v. Davis, 905 F.2d 245 (9th Cir. 1990), cert. denied, 498 U.S.
1047, 112 L. Ed. 2d 773, 111 S. Ct. 753 (1991). Davis announced that,
“in order to apply extraterritorially a federal criminal statute to a
defendant consistently with due process, there must be a sufficient nexus
between the defendant and the United States, so that such application would not
be arbitrary or fundamentally unfair.” Id. at
248-49; see also United States v. Klimavicius-Viloria, 144 F.3d
1249, 1257 (9th Cir. 1998), cert. denied, 120 S. Ct. 110 (1999) (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L.
Ed. 2d 490, 100 S. Ct. 559 (1980)) (“The nexus requirement serves the
same purpose as the ‘minimum contacts’ test in personal
jurisdiction. It ensures that a United States court will assert jurisdiction
only over a defendant who ‘should reasonably anticipate [**92]
being haled into court’ in this country.”); United States
v. Caicedo, 47 F.3d 370, 372 (9th Cir. 1995) (“Punishing a crime
committed on foreign soil … is an intrusion into the sovereign
territory of another nation. As a matter of comity and fairness, such an
intrusion should not be undertaken absent proof that there is a connection
between the criminal conduct and the United States sufficient to justify the
United States’ pursuit of its interests.”). Davis concerned
the prosecution of a foreign national — arrested on the high seas
— for attempting to smuggle marijuana into the United States under the
Maritime Drug Law Enforcement Act, 46 U.S.C. app.
§§ 1903(a, j). See 905 F.2d at 247. After observing
(i) that “international law principles [of extraterritorial
jurisdiction] may be useful as a rough guide of whether a sufficient nexus
exists between the defendant and the United States so that application of the
statute in question would not violate due process,” id. at 249
n.2, and (ii) that “where an attempted transaction is aimed at causing
criminal acts within the United States, there is a sufficient [**93]
basis for the United States to exercise jurisdiction,” id. at 249
(citations and quotations omitted), the Court held that a sufficient nexus
existed because “the facts found by the district court …
support the reasonable conclusion that [the defendant] intended to smuggle
contraband into United States territory,” id. (It is
evident that this holding was “roughly guided” by the
objective territoriality principle.) An earlier Ninth Circuit opinion had held that “there was
more than a sufficient nexus with the United States to allow the exercise of
jurisdiction… [because] drug trafficking may be prevented under the
protective principle of jurisdiction, without any showing of an actual effect
on [*220] the United States.” United States v.
Peterson, 812 F.2d 486, 493-94 (9th Cir. 1987) (citing United States v.
Pizzarusso, 388 F.2d 8, 10-11 (2d Cir.), cert. denied, 392 U.S. 936, 20 L.
Ed. 2d 1395, 88 S. Ct. 2306 (1968)). We agree that if the extraterritorial
application of a statute is justified by the protective principle, such
application accords with due process. Therefore, given that the
extraterritorial application of Sections 844, 924, 930, [**94] and
2155 to Odeh’s alleged extraterritorial conduct is justified by the
protective principle, see Subsection I.B, supra, we conclude that the
extraterritorial application of these statutes to Odeh’s conduct
satisfies due process. 707 F.2d 663, 667-68 (2d. Cir.), cert denied, 463 U.S.
1215 (1983). III. Constitutional Authority Odeh argues that the Counts based on 18 U.S.C.
§§ 2332 (viz., Count 1) and 2332a (viz., Counts 4,
9, and 10) must be dismissed because these statutes are unconstitutional in
that they exceed Congress’s authority to legislate under the
Constitution. See Odeh’s Memo. at 27-29. As noted above, Subsection
2332(b) provides in relevant part that “whoever outside the United
States … engages in a conspiracy to kill[] a national of the United
States shall [be punished as further provided],” 18 U.S.C.
§ 2332(b); and Section 2332a(a) provides in relevant part that,
“[a] person who … uses, threatens, or attempts or conspires
to use, a weapon of mass destruction … (1) against a national of the
United States while such national is outside of the United States; [**95]
… or (3) against any property that is owned, leased or used by the
United States …, whether the property is within or outside of the
United States, shall [be punished as further provided].” 18 U.S.C.
§ 2332a(a). Odeh suggests that there is but one constitutional grant of
authority to legislate that could support these two statutory provisions:
Article I, Section 8, Clause 10. See Odeh’s Memo. at 27-29. Clause 10
grants Congress the authority “to define and punish Piracies and
Felonies committed on the high Seas, and Offenses against the Law of
Nations.” U.S. Const, art. I, § 8, cl. 10. Odeh
argues that, as “the acts described in these two statutes …
are not widely regarded as offenses ‘against the law of
nations,’” these statutes exceed Congress’s
authority under Clause 10. Odeh’s Memo. at 28. There are two problems with this argument. First, even assuming
that the acts described in Section 2332 and 2332a are not widely regarded as
violations of international law, it does not necessarily follow that these
provisions exceed Congress’s authority under Clause 10. Clause 10 does
not merely give Congress the authority to punish offenses
against [**96] the law of nations; it also gives Congress the power
to “define” such offenses. Hence, provided that the acts in
question are recognized by at least some members of the international community
as being offenses against the law of nations, n57 Congress arguably has the
power to criminalize these acts pursuant to its power to define offenses
against the law of nations. See United States v. Smith, 18 U.S. (5 Wheat.) 153,
159, 5 L. Ed. 57 (1820) (Story, J.) (“Offenses … against the
law of nations, cannot, with any accuracy, be said to be completely ascertained
and defined in any public code recognized by the common consent of
nations… Therefore …, there is a peculiar fitness in giving
the power to define as well as to punish.”); Note, Patrick L.
Donnelly, Extraterritorial Jurisdiction Over Acts of Terrorism Committed
Abroad: Omnibus Diplomatic Security and Antiterrorism Act of 1986, 72 Cornell
L. Rev. 599, 611 (1987) (“Congress may define and punish offenses in international
law, notwithstanding [*221] a lack of consensus as to the
nature of the crime in the United States or in the world community.”). n57 And this would appear to be the case. See Blakesley,
Extraterritorial Jurisdiction, at 72, 70 (noting that terrorist violence
includes “wanton violence against innocent civilians,” and
that this offense is “condemned by virtually all domestic
law”); id. at 73 (“All nations condemn,
prosecute and punish terrorist violence, when perpetrated against them or their
nationals.”). [**97] Second, and more important, it is not the case that Clause 10
provides the only basis for Sections 2332 and 2332a. The Supreme Court has
recognized that, with regard to foreign affairs legislation,
“investment of the federal Government with the powers of external
sovereignty did not depend upon the affirmative grants of the
Constitution.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 81 L.
Ed. 255, 57 S. Ct. 216 (1936). Rather, Congress’s authority to
regulate foreign affairs “exist[s] as inherently inseparable from the
conception of nationality.” Id. (citations omitted).
More specifically, this “concept of essential sovereignty of a free
nation clearly requires the existence and recognition of an inherent power in
the state to protect itself from destruction.” United States v.
Rodriguez, 182 F. Supp. 479, 491 (S.D. Cal. 1960), aff’d in part,
rev’d in part sub nom Rocha v. United States, 288 F.2d
545 (9th Cir.), cert. denied, 366 U.S. 948, 6 L. Ed. 2d 1241, 81 S. Ct. 1902
(1961). In penalizing extraterritorial conspiracies to kill nationals of
the United States, Section 2332(b) is clearly designed to protect a vital
United States interest. And, indeed, [**98] Congress
expressly identified this protective function as the chief purpose of Section
2332. See 132 Cong. Rec. S1382-88, § 2331 (1986) (finding
that “it is an accepted principle of international law that a country
may prosecute crimes committed outside its boundaries that are directed against
its own security or the operation of its government functions … [and]
terrorist attacks on Americans abroad threaten a fundamental function of our
Government: that of protecting its citizens”); see also 132 Cong. Rec.
S1057 (1986) (statement of Sen. Specter) (stating that Section 2332 is
justified by the protective principle). Similarly, in penalizing attacks on United
States property, Section 2332a(a)(3) is clearly designed to protect a vital
United States interest. See H.R. Conf. Rep. No. 102-405, at 6 (1991)
(“The Congress finds that the use and threatened use of weapons of
mass destruction … gravely harm the national security and foreign
relations interests of the United States ….”). Therefore, we
conclude, under Curtiss-Wright, that Congress acted within its authority in
enacting these provisions. In view of the foregoing, we deny Odeh’s motion to
dismiss the counts [**99] based on Sections 2332 and 2332a (viz.,
Counts 1, 4, 9, and 10) insofar as this motion depends on his “lack of
constitutional authority” argument. IV. The Passive Personality Principle Odeh argues that (i) because, in enacting Sections 2332 and 2332a,
Congress relied solely on the passive personality principle of jurisdiction,
see Odeh’s Memo, at 30-31, and (ii) because the United States has
“traditionally rejected” this principle, id. at 30, the
counts based on these statutes should be dismissed. There are two problems with this argument. First, the argument is
a non sequitur. Given (i) that Congress clearly had the authority to enact
Sections 2332 and 2332a (as established in Section IV above), and (ii) that the
passive personality principle is “increasingly accepted as applied to
terrorist and other organized attacks on a state’s nationals by reason
of their nationality, or to assassination of a state’s diplomatic
representatives or other officials,” Restatement
§ 402, cmt. g; see also United States v. Rezaq, 328 U.S.
App. D.C. 297, 134 F.3d 1121, 1133 (D.C. Cir.), cert. denied, 525 U.S. 834, 119
S. Ct. 90, 142 L. Ed. 2d 71 (1998) (accepting passive personality principle),
[**100] it matters not that the United States
“traditionally” rejected the principle. Second, it is simply not the case that Congress predicated
Sections 2332 and 2332a solely on the passive personality principle. Rather, as
established in Subsection III above, Congress also relied — indeed,
relied primarily — on the protective principle. [*222] For the foregoing reasons, we deny Odeh’s motion to
dismiss the counts based on Sections 2332 and 2332a (viz., Counts 1, 4, 9, and
10) insofar as this motion depends on his “passive
personality” argument. V. Application of 18 U.S.C. § 930(c) to
Foreign Victims Odeh argues that interpreting Section 930(c) to reach
“the deaths of Kenyan and Tanzanian citizens [as opposed to United
States citizens] would be contrary to established principles of international
law.” Odeh’s Memo. at 32. More specifically, Odeh advances
the following two arguments. First, given (i) that “under 18 U.S.C. § 930(c),
the only arguable basis for jurisdiction over the deaths of foreign citizens is
the principle of universality,” (ii) that “universal
jurisdiction results where there is universal condemnation of an offense, [**101] and a general
interest in cooperating to suppress them, as reflected in widely accepted
international agreements,” and (ii) that “the universality
principle does not encompass terrorist actions resulting in the deaths of
individuals who are not diplomatic personnel,” it follows that
applying Section 930(c) to the deaths of “ordinary” foreign
nationals on foreign soil would constitute a violation of international law. Id. at 33
(citations omitted). There are two problems with this argument. First, because
“universal jurisdiction is increasingly accepted for certain acts of
terrorism, such as … indiscriminate violent assaults on people at
large,” Restatement § 404, cmt. a, a plausible case
could be made that extraterritorial application of Section 930(c) in this case
is supported by the universality principle. Second, it is not the case that the universality principle is the
“only arguable basis for jurisdiction over the deaths of foreign
citizens.” As indicated by our conclusion (in Subsection I.B.3 above)
that Section 930(c) is designed to protect vital United States interests, the
protective principle is also an “arguable basis” for the
extraterritorial application [**102] of Section
930(c). Hence, the only question is whether a statute of general application
— the extraterritorial application of which is acknowledged to be
justified by the protective principle — is nevertheless restricted to
victims who are citizens of the nation that enacted the statute. We are aware
of no authority for this proposition. Nor is such a limitation consistent with
the purposes the protective principle is designed to serve. Such a limitation
could only weaken the protective function of a statute designed to protect
United States interests. In providing for the death penalty where death results
in the course of an attack on a Federal facility, Section 930(c) is clearly
designed to deter attacks on Federal facilities. Given the likelihood that
foreign nationals will be in or near Federal facilities located in foreign
nations, this deterrent effect would be significantly diminished if Section
930(c) were limited to the deaths of United States nationals. To paraphrase Bowman,
“to limit [the reach of Section 930(c) to the deaths of United States
nationals] would be greatly to curtail the scope and usefulness of the statute
and leave open a large immunity for [attacks [**103] against
Federal facilities].” 260 U.S. at 101. Odeh argues, second, that, even if the universality principle (or
one of the four other principles) did authorize the application of Section
930(c) to the deaths of ordinary foreign nationals on foreign soil, such
application would violate international law nevertheless, because (i) “even
where one of the principles authorizes jurisdiction, a nation is nevertheless
precluded from exercising jurisdiction where jurisdiction would be
‘unreasonable,’” and (ii) application of Section
930(c) to the deaths of ordinary foreign nationals on foreign soil would be
unreasonable. Id. (citations omitted). According to the Restatement, the following factors are to be
taken into account for the purpose of determining whether exercise of
extraterritorial jurisdiction is reasonable: (a) the link of the
activity to the territory of the regulating state, i.e., the extent to which
the activity takes place [*223] within the territory, or has
substantial, direct, and foreseeable effect upon or in the territory; (b) the connections,
such as nationality, residence, or economic activity, between the regulating
state and the person principally [**104]
responsible for the activity to be regulated, or between that state and those
whom the regulation is designed to protect; (c) the character of
the activity to be regulated, the importance of regulation to the regulating
state, the extent to which other states regulate such activities, and the
degree to which the desirability of such regulation is generally accepted; (d) the existence of
justified expectations that might be protected or hurt by the regulation; (e) the importance of
the regulation to the international political, legal, or economic system; (f) the extent to
which the regulation is consistent with the traditions of the international
system; (g) the extent to
which another state may have an interest in regulating the activity; and (h) the likelihood of
conflict with regulation by another state. Restatement § 403(2). Given that factor (a)
alludes to the subjective territorial principle and the objective territorial
principle, it is not especially relevant to a statute, such as Section 930(c),
based primarily on the protective principle. Much the same can be said of
factor (b), as it alludes to the nationality principle, the subjective
territorial principle, [**105] and the
objective territorial principle. n58 Factor (c), in contrast, is highly
relevant to Section 930(c). It is important both to the United States and other
nations to prevent the destruction of their facilities — regardless of
their location; and such regulation is accordingly widely accepted among the
nations of the world. n59 As for factor (d), Section 930(c) protects the
expectation of foreign nationals that they will be free of harm while on the
premises of United States facilities. We can think of no
“justified” expectation, however, that would be hurt by the
extraterritorial application of Section 930(c). n60 As for factor (e), in light
of the prominent role played by the United States in “the
international political, legal, and economic systems,” the protection
of United States facilities — regardless of their location —
is highly important to the stability of these systems. Turning to factor (f),
as indicated by the preceding discussion of factor (c), most, if not all,
nations are concerned about protecting their facilities, both at home and
abroad. Hence, Section 930(c) is highly consistent “with the
traditions of the international system.” As for (g), it must be
acknowledged [**106] that when the United States facility is
on foreign soil, and when the victims of the attack are nationals of the host
nation, the host nation “has a keen interest in regulating and
punishing [the] offenders.” Odeh’s Memo. at 34. This is not
to say, however, that the host nation has a greater interest than does the
United States. Furthermore, even if it were the case that the host nation had a
greater interest than the United States, this single factor would be
insufficient to support the conclusion that application of Section 930(c) to
the bombings of the two Embassies is unreasonable. Coming, finally, to factor
(h), Odeh does not argue that application of Section 930(c) to the bombings
would conflict [*224] with Kenyan and/or Tanzanian
law, nor are we otherwise aware of such conflict. On the contrary, the
Government informs the Court that “the Kenyan Government voluntarily
rendered Odeh (and [co-defendant] al-’Owhali) to the United States,
and neither the Kenyan nor the Tanzanian Government has asserted any objection
to the United States’ exercise of jurisdiction in this case.”
Gov’t Memo. at 33. Factor (h) thus counts in favor of the
reasonableness of applying Section 930(c) to the [**107]
bombings. n58 This said, it is likely that many of the foreign nationals
killed in the embassy bombing had significant connections to the United States.
For example, some probably were embassy employees, while others were at the
embassy conducting business of various kinds with the United States. n59 See Blakesley, Extraterritorial Jurisdiction at 73
(“All nations condemn, prosecute and punish terrorist violence, when
perpetrated against them or their nationals.”). n60 Even if it were the case that foreign nationals did not expect
Section 930(c) to apply to the destruction of United States facilities on
foreign soil — and, as noted in Subsection II.B above, we doubt that
this is the case — such an expectation is not “justified.” In light of the foregoing, we conclude that the application of
Section 930(c) to the deaths of foreign nationals on foreign soil is
reasonable. We therefore deny Odeh’s motion to dismiss the counts
predicated on Section 930(c) (viz., Counts 11-233) insofar [**108] as
this motion depends on the arguments discussed in this Subsection. VI. The Death Penalty and International Law Noting that “the Government has indicated that it will
seek the death penalty” for his alleged crimes, Odeh argues that,
“because the imposition of the death penalty would be contrary to
international law on the facts of this case, the Court should dismiss counts
7-239.” Odeh’s Memo. at 35. n61 n61 Counts 7-239 are the counts predicated on statutes that
provide for the death penalty. Because “the Government has not determined against which
defendants, if any, it will seek the death penalty,” we agree with the
Government’s contention that this argument is premature.
Gov’t Memo, at 43. Therefore, we decline to consider it at this time.
For the same reason, we grant Odeh’s request for “an
opportunity to revisit … arguments [against the death penalty based on
international law] should the Government … seek the death
penalty.” Odeh’s Reply Memo, at 20. One final issue remains. Apparently [**109]
alluding to the Government’s contention that Odeh’s death
penalty argument is premature, Odeh states that “the Government argues
that all arguments relating to the death penalty are premature, since the
Government has not yet decided whether to seek authorization for the death
penalty.” Odeh’s Reply Memo. at 19 (emphasis added). This
statement is false. The Government argues ripeness only in regard to
Odeh’s sixth argument. In any case, Odeh then proceeds to make the
following ambiguous request: The Court cannot
decide the questions of constitutional and statutory interpretation raised here
without considering that this is potentially a capital prosecution. If the
Court agrees that these arguments are premature, Odeh respectfully requests
that the Court withhold a final ruling on the questions raised in his
memoranda, at least as regards the death-eligible offenses. Id. This request is ambiguous because it is not
clear to which arguments Odeh is referring. Odeh may be referring narrowly to
his due process arguments, or broadly to all of his arguments. Given that only
his due process arguments qualify as “arguments relating to the death
penalty,” we assume that [**110] Odeh
is referring only to those arguments. As noted, the Government does not contend that those arguments are
premature, and we agree that they are not. To consider first the rule of lenity
argument, having concluded that Sections 844, 924, 930, 1114, 1116, 2155, and
2332a unambiguously apply to the extraterritorial conduct of foreign nationals,
it is simply irrelevant (to a determination of whether the rule of lenity
should be applied) that these statutes provide for the death penalty. n62 n62 In saying this we do not mean to contest Odeh’s
suggestion that courts should be particularly sensitive to the presence of
ambiguity in statutes “implicating the death penalty,”
Odeh’s Memo. at 21 (citing State v. Harrell, 238 Conn.
828, 681 A.2d 944, 947 (Conn. 1996), i.e., as opposed to statutes providing for
lesser punishments. Our point is merely that once it is determined that such a
death-implicating statute is unambiguous, the court has no greater reason to
construe it in favor of the defendant than it has to construe an unambiguous
non-death-implicating statute in favor of the defendant. [**111] [*225] Turning to the fair warning argument, Odeh suggests that this
argument “relates” to the death penalty when he says that the
question is whether “a reasonable foreign citizen would have known he
risked a death sentence for his actions.” Odeh’s Memo. at 27
(emphasis added). This formulation of the issue is misleading, however. Given
that the availability of the death penalty is clearly and explicitly specified
in each of the statutes referred to by Odeh (viz., Sections 844, 924, 930, and
2155), the real question as regards these statutes is whether a reasonable
foreign citizen would have known that he risked being prosecuted in the United
States for performing the actions proscribed by these statutes, e.g., blowing
up United States embassies. Hence, the Government’s ultimate decision
to seek or not to seek the death penalty pursuant to these statutes has no
bearing whatever on the question whether Odeh had fair warning. This brings us, finally, to Odeh’s sufficient nexus
argument. Odeh contends that, “even assuming, arguendo, that
Odeh’s alleged involvement in a conspiracy to kill Americans
established sufficient nexus for a non-capital prosecution, the Court should
require [**112] a far greater nexus before permitting
the United States Government to seek the execution of a foreign
citizen.” Odeh’s Reply Memo, at 19. Unfortunately, however,
Odeh provides no support for this contention whatsoever. Nor does any such
support appear to be available. If Odeh’s alleged involvement in a
conspiracy to kill Americans does indeed satisfy the nexus requirement, then we
fail to see how his eligibility for the death penalty if convicted of this
offense could sever this nexus. Conclusion In light of the foregoing, Odeh’s motion to dismiss
Counts 5-233, 236-239, and 242-244 for lack of jurisdiction is denied; whereas,
his motion to dismiss Counts 234, 235, 240, and 241 for lack of jurisdiction is
granted. SO ORDERED Dated: New York, New York March 13, 2000 Leonard B. Sand U.S.D.J. |