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U.S. v. BIN LADEN

March 13, 2000

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 "ABDULLBASIT 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.



The opinion of the court was delivered by: Sand, District Judge.

  OPINION

Opinion as to Jurisdiction*fn1

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 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." 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.*fn2

A. General Principles of Extraterritorial Application

It is well-established that Congress has the power to regulate conduct performed outside United States territory. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (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, 113 S.Ct. 2549, 125 L.Ed.2d 128 (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, 111 S.Ct. 1227 (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (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 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, 113 S.Ct. 2549; See also Smith v. United States, 507 U.S. 197, 201-03, 113 S.Ct. 1178, 122 L.Ed.2d 548 (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.*fn3 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 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 thereof. . . ." Id. at 101, 43 S.Ct. 39 (emphasis added).*fn4 In concluding that Congress intended this statue to apply extraterritorially, the Court reasoned that it "cannot [be] suppose[d] 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, 43 S.Ct. 39.

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. 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 dependant 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 for frauds as easily committed [by foreign nationals] as [by United States nationals]." Bowman, 260 U.S. at 98, 43 S.Ct. 39.

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, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968);*fn5 see also United States v. Larsen, 952 F.2d 1099, 1101 (9th Cir. 1991) (21 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, 105 S.Ct. 154, 83 L.Ed.2d 92 (1984) (same); United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir. 1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (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 — 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.*fn5 Correlatively, no court, to date, has refused to apply the Bowman rule on the ground that the defendant was a foreign national.*fn6

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.*fn7 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, Extraterritorial 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 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 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 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, 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, "[i]n 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 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, 83 S.Ct. 671, 9 L.Ed.2d 547 (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, ___ U.S. ___, 120 S.Ct. 318, 145 L.Ed.2d 114 (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, 113 S.Ct. 2332, 124 L.Ed.2d 244 (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).

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).*fn8 According to 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 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.*fn9

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 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., 21 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," 21 U.S.C. § 841(a)(1), were an "inherently extraterritorial" statute; while, on the other hand, a statute that makes it 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, 105 S.Ct. 1403, 84 L.Ed.2d 790 (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 — conspiracy directed against the United States; 18 U.S.C. § 924(c) — using or carrying a firearm in connection with another felony).*fn10

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*fn11 on 18 U.S.C. § 844(f) and (n); Counts 7*fn12 and 8*fn13 on 18 U.S.C. § 844(f), and Count 242*fn14 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.

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(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 extra territorially — 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. 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 "[w]hoever 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) (emphasis added).*fn15 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.

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 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)), ". . . . [s]urely[] 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). 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 "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] ha[ve] 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 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)] reflect[s] 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). 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 "[t]he 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 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. "[I]t 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, 81 S.Ct. 864, 6 L.Ed.2d 72 (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. 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), cert. denied, 513 U.S. 1146, 115 S.Ct. 1092, 130 L.Ed.2d 1061 (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*fn16 and 244*fn17 on Section 924(c). Section 924(c). Section 924(c) provides in relevant part:

[A]ny 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 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.

3. 18 U.S.C. § 930(c)

The Indictment predicates Counts 11-233*fn18 on Subsection 930(c). Subsection 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).*fn19 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 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.

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 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*fn20 and 237*fn21 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. 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.

Odeh argues that this conclusion is belied by Section 1114's legislative history. Specifically, Odeh points out that, "[i]n 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).*fn22 Furthermore, "at the same time it amended § 1114, in the same piece of 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 ...

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