United States v. Ahmed Abukhatallah ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2022 Decided July 26, 2022
No. 18-3041
UNITED STATES OF AMERICA,
APPELLEE
v.
AHMED SALIMFARAJ ABUKHATALLAH, ALSO KNOWN AS
AHMED MUKATALLAH, ALSO KNOWN AS AHMED ABU
KHATALLAH, ALSO KNOWN AS AHMED BUKATALLAH, ALSO
KNOWN AS SHEIK,
APPELLANT
Consolidated with 18-3054
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cr-00141-1)
Julia Fong Sheketoff, Assistant Federal Public Defender,
argued the cause for appellant/cross-appellee. With her on the
briefs was A. J. Kramer, Federal Public Defender. Mary M.
Petras, Assistant Federal Public Defender, entered an
appearance.
2
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee/cross-appellant. With him on the briefs were
Elizabeth Trosman, Assistant U.S. Attorney at the time the
brief was filed, and Elizabeth H. Danello and John Crabb Jr.,
Assistant U.S. Attorneys. Chrisellen R. Kolb, Assistant U.S.
Attorney, entered an appearance.
Before: MILLETT, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Concurring Opinion filed by Circuit Judge MILLETT.
PER CURIAM: Ahmed Abu Khatallah (“Khatallah”) was
convicted on several counts related to his involvement in the
September 11, 2012, terrorist attack on the United States’
diplomatic outpost in Benghazi, Libya. He was sentenced to
22 years of imprisonment and five years of supervised release.
He now appeals his convictions under several theories, seeking
acquittal or at least a new trial. The government has cross-
appealed, arguing the district court’s 22-year sentence is
substantively unreasonably low. We hold for the government.
Khatallah has failed to show that he was convicted on legally
insufficient evidence, that he was prejudiced by any erroneous
evidentiary rulings or jury instructions, or that he was
substantially prejudiced by the prosecution’s closing
arguments. On the other hand, Khatallah’s sentence is
substantively unreasonably low in light of the gravity of his
crimes of terrorism. The district court’s decision to disregard
conduct for which Khatallah was acquitted cannot account for
its dramatic downward departure from the Sentencing
Guidelines’ recommendation. We therefore reverse his
sentence and remand for resentencing.
3
I
A
In 2011, after the fall of Muammar Gaddafi’s regime, the
United States established a diplomatic outpost, the United
States Special Mission (“the Mission”), in the city of Benghazi
“to maintain a diplomatic relationship with those in eastern
Libya and to support the people of Libya in rebuilding their
war-torn country.” Government’s Supplemental Appendix
(“S.A.”) 84. “The Mission was typically occupied by a small
contingent of [State Department] personnel and members of a
local guard force, who were employed by [the State
Department].” S.A. 84. The CIA also established a covert
facility (“the Annex”) about a mile away. During the events
relevant here, the U.S. Ambassador to Libya, J. Christopher
Stevens, was temporarily staying at the Mission.
On the night of September 11, 2012, dozens of terrorists
assaulted the Mission under cover of darkness. Around 9:45
p.m., the heavily armed militants assembled and forced their
way through the Mission’s main gate. They opened fire on the
American and allied security personnel stationed there. They
bashed and poured gasoline on Mission vehicles. And the
militants set fire to the “Villa,” the main residential facility in
the Mission, which was occupied by Ambassador Stevens and
Sean Patrick Smith, a State Department Foreign Service
officer. After initially seeking refuge in a safe room, both men
died from smoke inhalation while trying to escape the Villa.
U.S. and allied forces counterattacked, and by around 10:15
p.m., this first wave of the attack had been repulsed.
The second wave began around 11:15 p.m., when the
militants returned to the Mission at another gate and attacked
the American allies still on the premises using AK-47s and
rocket-propelled grenades. The remaining Americans on site
4
quickly evacuated the facility and made a perilous drive to the
Annex. The militants gained entry around 11:45 p.m. and
ransacked the Mission, lighting vehicles on fire and taking
sensitive information from the Mission’s Tactical Operations
Center. Their work at the Mission done, the militants attacked
the Annex around 12:30 a.m. on September 12 and then
retreated after two violent skirmishes. Around 5:15 a.m., they
resumed their attack with mortar fire that killed two more
Americans, security officers Tyrone Woods and Glen Doherty,
and injured two others. U.S. reinforcements eventually arrived
and evacuated the U.S. personnel in the Annex to safety in
Tripoli.
Ambassador Stevens’ death shocked the American public.
As the district court remarked at sentencing, “it was the first
time in 40 years that a United States ambassador had been
killed in the line of duty.” Sentencing Tr. 50 (June 27, 2018).
In response, the U.S. government deployed substantial
resources to find and punish those responsible. These efforts
led to Khatallah’s 2014 capture.
Khatallah is a 51-year-old Benghazi native. He was
imprisoned by the Gaddafi regime—allegedly for his religious
beliefs. At some point after his release from custody, Khatallah
became the leader of “Ubaydah Bin Jarrah” (“UBJ”), an
Islamist militia active in the Benghazi area. UBJ was one of
many local “brigades” that formed a coalition against the
Gaddafi regime in the Libyan Civil War but afterward
continued to operate independently of the recognized successor
government. Testimony at trial linked UBJ to Ansar al-Sharia,
5
a notorious Al-Qaeda affiliated organization whose camp
served as a base of operations for the Benghazi attack.1
Khatallah was captured pursuant to a joint operation
among multiple U.S. agencies. The government principally
relied on the cooperation of Ali Majrisi, a wealthy Benghazi-
based businessman who befriended Khatallah at the United
States’ urging.2 Majrisi approached Khatallah with an offer of
financing and convinced him to go to a purported “safe house”
on the coast. In fact, U.S. forces were waiting to arrest
Khatallah. He was subdued and disarmed upon entering the
building, and U.S. forces loaded him onto a Navy vessel for
transport to the United States. American officials also
interrogated Khatallah about the attack en route.
B
Khatallah was indicted on 18 counts. Count 1 was for
“conspiracy to provide material support and resources to
terrorists resulting in death.” Appellant’s Appendix (“App.”)
2–8; see 18 U.S.C. § 2339A. Count 2 was for “providing
material support and resources to terrorists resulting in death.”
App. 8–9; see 18 U.S.C. § 2339A. Counts 3–15 were for the
murders, attempted murders, and killings by fire or explosives
of Ambassador Stevens and the three other Americans. App.
1
The parties dispute the proper way to characterize UBJ. The
government describes UBJ as “comprised of Islamist extremists who
refused to operate under the authority of the post-revolution
government in Benghazi,” Gov’t Opening Br. 7, and there is
testimony supporting this characterization. Khatallah emphasizes
that at one point UBJ was working with the United States and
received some indirect protection from the United States.
2
Like other witnesses, including Bilal al-Ubydi, Majrisi used a
pseudonym for his safety and that of his family.
6
9–17. Counts 16 and 17 were for “maliciously destroying and
injuring dwellings and property and placing lives in jeopardy
within the special maritime and territorial jurisdiction of the
United States and attempting to do the same” in violation of 18
U.S.C. § 1363. App. 17–18; see 18 U.S.C. § 7 (defining the
“special maritime and territorial jurisdiction of the United
States”). Count 16 was for the destruction of the Mission
buildings and property, while Count 17 was for the damage to
the Annex. And Count 18 was for “using, carrying,
brandishing, and discharging a firearm during a crime of
violence” in violation of 18 U.S.C. § 924(c). App. 18–19.
At trial, after presenting testimony about the nature of the
attack and the deaths of the four Americans, the government
presented a series of witnesses to tie Khatallah to the attack on
the Mission. See United States v. Khatallah (“Khatallah IV”),
313 F. Supp. 3d 176, 182–85 (D.D.C. 2018) (summarizing the
evidence presented at trial).
First, the government called Khalid Abdullah, a Libyan
army commander. He claimed Khatallah told him he resented
the presence of American intelligence personnel in the country
and that he was planning to attack the consulate. Although
Abdullah was a part of the U.S.-friendly army, he testified that
Khatallah warned him not to interfere with the attack and asked
for military equipment and vehicles. Khatallah IV, 313 F.
Supp. 3d at 182–83.
Second, the government called Bilal al-Ubydi, who grew
up with Khatallah and was a local leader of the militia groups
friendly to the United States. Khatallah IV, 313 F. Supp. 3d at
183. Al-Ubydi testified that Khatallah was UBJ’s commander
and religious leader. While viewing surveillance footage in
court, al-Ubydi identified several people carrying assault rifles
during the first wave of the attack as UBJ members and close
7
associates of Khatallah. Al-Ubydi further testified that
Khatallah called him around 10:15 p.m. the night of the attack
and told him—in a manner al-Ubydi perceived as hostile and
threatening—to “pull back” a group of guards stationed near
the Mission. Trial Tr. 2533 (Oct. 18, 2017, AM). Finally, in
Mission surveillance footage timestamped 11:55 p.m., al-
Ubydi identified Khatallah as a figure holding an assault rifle
and surrounded by other attackers including the local
commander of Ansar al-Sharia.
Third, the government called the agents who captured
Khatallah and interrogated him on his way to the United States.
Khatallah IV, 313 F. Supp. 3d at 184. They testified that during
the interrogation, Khatallah identified people from the
surveillance footage of the Benghazi attack. According to one
of the agents, Khatallah also admitted to manning a roadblock
and turning away U.S.-friendly forces, to driving to the
compound after the attack began with a gun, and to entering a
Mission building.
Finally, the government called Ali Majrisi, the local
businessman who helped capture Khatallah. He testified that
Khatallah knew he was suspected of involvement in the attack
and that Khatallah expressed disappointment that more
Americans had not been killed. Khatallah IV, 313 F. Supp. 3d
at 183. Majrisi also testified that Khatallah essentially admitted
involvement in the attack by referring to “when we were
attacking the compound” and stating that he “intended then to
kill everybody” associated with the Mission. Trial Tr. 4995
(Nov. 6, 2017, PM).
The government also relied heavily on spreadsheets it
claimed were records of Khatallah’s phone calls. Khatallah IV,
313 F. Supp. 3d at 183–84. A witness from Libyana Mobile
Phone testified that the documents appeared to be Libyana
8
forms. Witnesses also matched the numbers on the spreadsheet
to phone numbers belonging to UBJ members. The
government used this testimony, in concert with video footage
showing UBJ members speaking on the phone during the
attack, to show both that the records were authentic and that
Khatallah was in touch with UBJ members on site during the
first wave of the attack.
Khatallah’s first main witness was a friend, Ahmed Salem,
who claimed Khatallah was at his house the evening of the
attack and that when Khatallah was called and told about the
attack he was surprised to hear there was a U.S. diplomatic
facility in Benghazi. Khatallah IV, 313 F. Supp. 3d at 184. His
other main witness was Abdul Basit Igtet, who testified that
Khatallah was eager to speak with the United States before he
was captured. Id. Beyond that, because of national security
concerns that limited the evidence he could bring, Khatallah
had to rely on stipulations read to the jury to bolster his defense.
“Most of the stipulations described information in the
government’s possession concerning other possible
perpetrators of the attack,” while other stipulations conveyed
the compensation provided to the government’s cooperating
witnesses. Id. A final stipulation reported that the cell phone
registered to Khatallah’s phone number was in his house three
miles from the Annex during most of the attack on the Annex.
Id. at 184–85.
After a seven-week trial, the jury found Khatallah guilty
on four counts. It convicted on Counts 1 and 2 for conspiring
to provide material support to terrorists and providing that
support. It convicted on Count 16 for injuring a building, “that
is, the U.S. Special Mission,” within the U.S. “special maritime
and territorial jurisdiction.” App. 165. And it convicted on
Count 18 for carrying a semi-automatic weapon during a crime
of violence. For Counts 1 and 2, the jury made special findings
9
that Khatallah was not guilty of conduct “resulting in death.”
App. 163. And Khatallah was acquitted of Counts 3–15 and
Count 17. Thus, Khatallah was acquitted of all murder and
related homicide charges and for any liability directly
involving the Annex. See Khatallah IV, 313 F. Supp. 3d at 186.
During trial, Khatallah had moved for a judgment of
acquittal after the government rested, and he renewed it after
he presented his case. United States v. Khatallah (“Khatallah
VI”), 316 F. Supp. 3d 207, 210 (D.D.C. 2018). The court
reserved consideration of the motion and allowed the jury to
decide. Id. After the jury delivered its verdict, Khatallah
renewed his acquittal motion with respect to his conviction for
carrying a semi-automatic firearm during a crime of violence
(Count 18). Id. But the district court denied the motion on the
ground that a conviction under Section 1363 for damaging
property necessarily involved “the use, attempted use, or
threatened use of physical force against the … property of
another” as required for Count 18. Id. at 213 (quoting 18
U.S.C. § 924(c)(3)(A)).
Before and after the jury delivered its verdict, Khatallah
also moved for a mistrial on the basis of the prosecution’s
closing arguments. He claimed the prosecutor’s references to
matters outside the record, her denigration of the defense’s
stipulations, and her emotive appeals to patriotism deprived
him of due process. While agreeing some of the prosecutor’s
behavior was outside the bounds of acceptable advocacy, the
court denied the motion on the ground that Khatallah failed to
show he was prejudiced. Khatallah IV, 313 F. Supp. 3d at 185–
86, 190–96.
At sentencing, the court calculated Khatallah’s
Guidelines-recommended sentence as life plus ten years.
United States v. Khatallah (“Khatallah V”), 314 F. Supp. 3d
10179, 202–03 (D.D.C. 2018). Nonetheless, the court varied
downward from that calculation to impose a 22-year
sentence—a 12-year sentence for Counts 1, 2, and 16, and a
statutorily mandated consecutive ten-year sentence for Count
18.
Khatallah appealed, and the government cross-appealed
Khatallah’s sentence.
II
At trial, the government introduced records of telephone
calls purportedly made and received by Khatallah around the
time of and during the attack on the Mission. Those records
were obtained from Libyana Mobile Phone. Khatallah argues
that the records were erroneously admitted into evidence
because they were not authenticated before the jury.
We review the district court’s decision to admit the records
into evidence for an abuse of discretion. United States v.
Lawson, 494 F.3d 1046, 1052 (D.C. Cir. 2007).
Generally speaking, documents offered to prove the truth
of their content—here, to show that Khatallah communicated
with certain persons at certain times—are inadmissible
hearsay. See FED. R. EVID. 801, 802. But “[a] record of an act[]
[or] event” is admissible notwithstanding the rule against
hearsay if it (1) “was made at or near the time by … someone
with knowledge[,]” (2) “was kept in the course of a regularly
conducted activity of a business,” (3) was made as part of “a
regular practice of that activity[,]” and (4) “the opponent” of its
admission “does not show that the source of information or the
method or circumstances of preparation indicate a lack of
trustworthiness.” Id. 803(6). “[A]ll these conditions” may be
11
“shown by … a certification that complies with … a statute
permitting certification[.]” Id. 803(6)(D).
Congress has enacted a certification statute specifically to
govern the admission of “a foreign record of regularly
conducted activity,” like the telephone records here. 18 U.S.C.
§ 3505(a)(1). “In a criminal proceeding[,]” such a record
“shall not be excluded as evidence by the hearsay rule if a
foreign certification attests” to conditions similar to those
specified by Federal Rule of Evidence 803(6): That is, that the
record (1) “was made, at or near the time of the occurrence of
the matters set forth, by … a person with knowledge of those
matters[,]” (2) “was kept in the course of a regularly conducted
business activity[,]” (3) was made “as a regular practice” of
“the business activity[,]” and (4) is either an original or “a
duplicate of the original[.]” Id. § 3505(a)(1), (a)(1)(A)–(D).
Another “condition precedent to admissibility” is
authentication. United States v. Rembert, 863 F.2d 1023, 1026
(D.C. Cir. 1988) (internal quotation marks omitted).
Ordinarily, to authenticate a proffered item, “the proponent
must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” FED. R. EVID. 901(a).
Under Section 3505, Congress directed that the foreign
certification itself “shall authenticate such record or duplicate”
of the record as long as the district court finds “trustworth[y]”
the “source of information or the method or circumstances of
[the document’s] preparation.” 18 U.S.C. § 3505(a)(1)–(2).
Consistent with Section 3505, the government moved
prior to trial for an order authenticating and admitting into
evidence the Libyana telephone records. The district court
granted that motion, crediting the foreign certification of the
Libyana records by Mohammed Ben Ayad, the Chief
Executive Officer of Libyana. United States v. Khatallah, 278
12
F. Supp. 3d 1, 6 (D.D.C. 2017). Ben Ayad attested that the
telephone records satisfied Section 3505’s four conditions of
admissibility. S.A. 8.
In finding that the telephone records satisfied Section
3505’s requirements for admissibility, the district court
provided that the admissibility of testimony about the records
was “subject to the Government later establishing [the
records’] relevance as Mr. Khatallah’s phone records.” Trial
Tr. 2597 (Oct. 18, 2017, PM); see FED. R. EVID. 104(b).
Khatallah does not challenge the district court’s pretrial
ruling deeming the records admissible under Section 3505.
Instead, he contends that the government failed subsequently
to authenticate the telephone records before the jury. That
argument fails because, by connecting the records to Khatallah
as the district court required, the government simultaneously
“produce[d]” for the jury “evidence sufficient to support a
finding” that the records were authentic, consistent with
Federal Rule of Evidence 901(a).
First, “[t]he appearance, contents, substance, internal
patterns, [and] other distinctive characteristics” of the records
supported the inference that they were genuinely Libyana
phone records documenting Khatallah’s calls. FED. R. EVID.
901(b)(4). The records consisted of a table with fields labeled,
in Arabic, “time of call,” “duration of call,” “number of
receiver,” and “number of caller.” App. 839 (records’ first
page); App. 504–06. The table also had technical headings
indicating the cell tower used for each call. App. 839.
Second, a Libyana security guard who had previously
obtained information from Libyana’s computer system for the
FBI testified that the records were in the “[s]ame format” as
Libyana call records he had seen. Trial Tr. 4808 (Nov. 2, 2017,
PM); id. at 4815. He observed that the phone number attributed
13
to Khatallah began with the number 92, a Libyana prefix, and
that “all the numbers” were preceded by Libya’s country code,
218. Id. at 4808–09. The records also contained a colorized
page that, according to the guard, bore the same purple hue as
other Libyana records. Id. at 4812. This purple coloring was
consistent with photographs taken of Libyana subscriber
records. S.A. 116–21. The guard confirmed that the records
were “for sure” Libyana records. Trial Tr. 4892 (Nov. 6, 2017,
AM).
Third, Ali Majrisi, the Benghazi businessman recruited by
the United States to help apprehend Khatallah, testified that the
subscriber indicated in the records was Khatallah’s brother and
that the address listed was Khatallah’s. Trial Tr. 4979–80
(Nov. 6, 2017, PM). Additionally, multiple witnesses testified
that phone numbers in the spreadsheet belonged to associates
of Khatallah. See, e.g., Trial Tr. 2608 (Oct. 18, 2017, PM);
Trial Tr. 3887 (Oct. 30, 2017, AM); Trial Tr. 4810–11 (Nov. 2,
2017, PM); id. at 4812.
Fourth, witness testimony corroborated that certain calls
documented in the records actually were made by or to
Khatallah. Special Agent Michael Clarke testified that
Khatallah told him he “may have” called Salah al-Amari after
receiving a call from Jamaica—both UBJ members—between
8:30 and 9:00 p.m. on the evening of the attack. Trial Tr. 3874
(Oct. 30, 2017, AM); see id. at 3867. The records indicate a
call from Khatallah to al-Amari at 8:39 p.m. Id. at 3878–79;
App. 868. Similarly, Bilal al-Ubydi testified that Khatallah
called him around 10:15 p.m. that same evening. Trial Tr.
2531–33 (Oct. 18, 2017, AM). A call from Khatallah to al-
Ubydi at 10:20 p.m. appears in the records. Trial Tr. 2609–10
(Oct. 18, 2017, PM); App. 868.
14
Khatallah objects that there were many reasons for a jury
to discredit the government’s authenticating evidence. For
example, he argues that while the records’ “headings are
consistent with what one might expect to see on genuine and
accurate foreign call records, they hardly help to prove that the
spreadsheet actually comprised such records.” Khatallah
Reply Br. 8 (emphasis in original). He also notes that while
Agent Clarke reported that al-Ubydi told him that he and
Khatallah spoke for “over ten minutes” on the night of the
attack, the corresponding entry in the records indicates the call
lasted just 36 seconds. Khatallah Opening Br. 15; compare
Trial Tr. 5584–85 (Nov. 13, 2017, PM), with App. 868.
To be sure, Khatallah had grounds for challenging the
government’s showing and arguing to the jury that they should
not credit the telephone records—and he did so. See, e.g., Trial
Tr. 6093 (Nov. 16, 2017, PM) (defense counsel arguing in
closing that “there’s absolutely no[] foundation for you to
believe that … what they keep calling phone records are, in
fact, phone records”). But in deciding the telephone records’
admissibility, the question is not whether the government
conclusively proved their authenticity. It is only whether the
government’s showing “permit[ted] a reasonable juror to find
that the evidence is what its proponent claims.” United States
v. Blackwell, 694 F.2d 1325, 1330 (D.C. Cir. 1982) (citation
omitted). The government’s evidentiary showing was
sufficient to that task. And with Rule 901’s requirements met,
Khatallah’s arguments “go to the weight of the evidence—not
to its admissibility.” United States v. Tin Yat Chin, 371 F.3d
31, 38 (2d Cir. 2004) (emphases in original); see also United
States v. Mitchell, 816 F.3d 865, 871–72 (D.C. Cir. 2016); 31
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE EVIDENCE § 7104 (2d ed. April 2022
update) (“[T]he jury retains the power to determine what
15
weight to give evidence in light of any questions concerning its
authenticity.”).3
III
Khatallah challenges his conviction on Count 16 for
“maliciously destroying and injuring dwellings and property,
that is the U.S. Special Mission, and placing lives in jeopardy
within the special maritime and territorial jurisdiction of the
United States and attempting to do the same.” App. 165. He
maintains that the evidence was legally insufficient to
demonstrate that his actions fell within the special maritime
and territorial jurisdiction of the United States (“the special
jurisdiction”) or alternatively that the conviction should be
vacated because the jury was wrongly instructed regarding this
jurisdictional element. We decline to set aside this conviction
on either ground.
A
Khatallah was convicted under 18 U.S.C. § 1363, which
criminalizes the malicious destruction of buildings and
property “within the special maritime and territorial
jurisdiction of the United States.” 18 U.S.C. § 1363.4 The jury
3
Because the government introduced sufficient evidence to
permit a rational jury to conclude that the records were authentic, we
need not decide whether the district court’s pretrial authentication
ruling under 18 U.S.C. § 3505 made authentication before the jury
unnecessary. See Gov’t Opening Br. 22–29.
4
Section 1363 provides in full that, “[w]hoever, within the
special maritime and territorial jurisdiction of the United States,
willfully and maliciously destroys or injures any structure,
conveyance, or other real or personal property, or attempts or
conspires to do such an act, shall be fined under this title or
16
also convicted him of the aggravating factor that applies “if the
building be a dwelling, or the life of any person be placed in
jeopardy.” Id.; see App. 165.
To bring Khatallah’s offense within the special
jurisdiction, the government relied only on the diplomatic
premises definition of the special jurisdiction. 18 U.S.C.
§ 7(9). This definition applies to “offenses committed by or
against a national of the United States” on the premises of U.S.
diplomatic facilities abroad, including “United States
Government Missions … in foreign States.” Id. § 7(9),
7(9)(A). The government maintains that this definition applies
because the destruction of property was “committed … against
a national of the United States” on the premises of the Mission.
Khatallah argues he is entitled to acquittal on Count 16 because
there was legally insufficient evidence that his actions satisfied
the diplomatic premises definition of the United States’ special
jurisdiction.
Khatallah’s challenge “faces a high threshold.” United
States v. Tucker, 12 F.4th 804, 826 (D.C. Cir. 2021) (per
curiam) (cleaned up). The question is “whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Id. (cleaned up).
Because the question is what “any rational trier of fact” could
have found, our determination “does not rest on how the jury
was instructed.” Musacchio v. United States, 577 U.S. 237,
243 (2016).
imprisoned not more than five years, or both, and if the building be
a dwelling, or the life of any person be placed in jeopardy, shall be
fined under this title or imprisoned not more than twenty years, or
both.”
17
To meet this high bar, Khatallah makes a purely legal
argument that no Section 1363 conviction can rest on the
diplomatic premises definition of the special jurisdiction
regardless of the evidence in the case because of the
intersecting elements of that definition and Section 1363.
The diplomatic premises definition of the special
jurisdiction has two parts as relevant here: (1) the crime has to
take place on the premises of a diplomatic or military facility,
and (2) it has to be an “offense[] committed by or against a
national of the United States.” 18 U.S.C. § 7(9)(A), 7(9).
Khatallah does not dispute that the attack occurred at a
diplomatic mission, but he argues a violation of Section 1363
can never be an offense committed “against a national of the
United States.” He invokes the traditional distinction between
crimes against the person and crimes against property. Cf.
Borden v. United States, 141 S. Ct. 1817, 1839–40 (2021)
(Kavanaugh, J., dissenting). Section 1363, he says, is
“essentially a property crime” because it requires the “willful[]
and malicious[] destruction” of a structure or property. 18
U.S.C. § 1363. The destruction of property cannot be a crime
“against” an American national or any person, Khatallah
insists, regardless of the circumstances or effects of the crime.
Because Section 1363 is never a crime against an American
person, Khatallah argues its special jurisdiction element can
never be satisfied by the diplomatic premises definition, which
applies only to offenses against persons, namely U.S.
nationals.5 Therefore, because the jurisdictional element of
5
This is not the first time Khatallah has made this argument: the
district court rejected it in an opinion denying a motion to dismiss
that count of the indictment before trial. United States v. Khatallah,
168 F. Supp. 3d 210, 213–15 (D.D.C. 2016).
18
Count 16 cannot be satisfied by the charged category of special
jurisdiction, Khatallah claims he is entitled to an acquittal.
Section 1363 does not just define a property crime. Some
violations of Section 1363 may be exclusively property crimes.
See, e.g., United States v. Grady, 18 F.4th 1275, 1281–83 (11th
Cir. 2021) (affirming a conviction under Section 1363 for a
peaceful protest that involved spray painting naval facilities).
But Section 1363 also creates an enhanced offense that can be
committed by destroying property in a way that places a life in
jeopardy. 18 U.S.C. § 1363 (enhancing the maximum penalty
“if … the life of any person be placed in jeopardy”). These
violations of Section 1363 are not just property crimes. When
placing a person in jeopardy is an element of the offense, that
offense is committed against the person threatened.6 We thus
agree with the district court that when an American life is the
one placed in jeopardy as required for the statutory
enhancement, the malicious destruction of property in violation
of Section 1363 is an “offense committed … against a national
of the United States” and can occur within the special
jurisdiction’s diplomatic premises definition. See United
States v. Khatallah, 168 F. Supp. 3d 210, 213 (D.D.C. 2016).
Because Khatallah’s purely legal argument cannot
succeed, there is no basis for a judgment of acquittal on appeal.
On the facts here, a rational trier of fact could have found
beyond a reasonable doubt that Khatallah violated
Section 1363 in a way that placed an American’s life in
6
Because it is sufficient that placing an American life in
jeopardy is an offense committed against an American, we need not
address whether someone can violate Section 1363 within the special
jurisdiction by injuring an American’s dwelling. See 18 U.S.C.
§ 1363 (enhancing the maximum permissible sentence “if the
building be a dwelling”).
19
jeopardy. Khatallah’s co-conspirators perpetrated a violent
attack on Americans while damaging U.S. property, so a
rational jury could have convicted Khatallah as vicariously
liable for their actions. “[A] conspirator can be found guilty of
a substantive offense based upon acts of his coconspirator so
long as the act was done in furtherance of the conspiracy, was
within the scope of the unlawful project, and could be
reasonably foreseen as a necessary or natural consequence of
the unlawful agreement.” United States v. Sampol, 636 F.2d
621, 676 (D.C. Cir. 1980) (per curiam) (citing Pinkerton v.
United States, 328 U.S. 640 (1946)).
Here videos showed that UBJ members Aymen al-Dijawi,
Jamaica, and Zakaria Barghathi “stormed a secure government
compound with guns, entered Mission buildings while armed,
and spread gasoline on vehicles located at the Mission,” all
while Americans were still present. See Khatallah V, 314 F.
Supp. 3d at 196. The video provides ample evidence that UBJ
members were placing American lives in jeopardy while
damaging the Mission. In light of the testimony that Khatallah
was UBJ’s leader, the phone records purporting to show
Khatallah communicating with UBJ members during the
attack, and the fact that Khatallah showed up armed later on the
same night, a reasonable juror could have found those armed
UBJ members present to be Khatallah’s co-conspirators.
Finally, the conspiracy was to destroy the Mission, so the
assault on the Mission was clearly in furtherance of the
conspiracy. Given that the Mission was heavily guarded, the
UBJ members’ violent actions against Americans were a
reasonably foreseeable consequence of the conspiracy. A
rational jury had plenty of evidence to find beyond a reasonable
doubt that Khatallah violated Section 1363 within the
diplomatic premises definition of the special jurisdiction.
20
Khatallah makes three arguments to resist this conclusion,
but none is persuasive.
First, he argues that even if violating the enhanced version
of Section 1363 by placing a life in jeopardy is an offense
against a person, that is “irrelevant” because the jury was not
told that this was the only path for conviction. Khatallah Reply
Br. 29. But motions for an acquittal based on insufficient
evidence cannot depend on jury instructions. See Musacchio,
577 U.S. at 243; see also Griffin v. United States, 502 U.S. 46,
49 (1991) (explaining the pre-Revolutionary common law
principle that “a … verdict was valid so long as it was legally
supportable on one of the submitted grounds—even though that
gave no assurance that a valid ground, rather than an invalid
one, was actually the basis for the jury’s action”). As such, it
does not matter for Khatallah’s sufficiency of the evidence
challenge if the jury was provided with an erroneous path to a
guilty verdict via the dwelling enhancement as long as a
properly instructed jury had enough evidence for conviction.
Khatallah’s second argument is that we should apply a
categorical approach to the diplomatic premises definition. He
argues unless the “offense” in the diplomatic premises
definition has, as an essential element, that the crime be
committed against an American, that definition of the special
jurisdiction cannot apply.
We disagree; whether an offense is “committed by or
against a national of the United States” is determined by the
facts of the charged offense, not by the offense’s legal
elements. The diplomatic premises definition applies to
“offenses committed by or against a national of the United
States” that take place on U.S. diplomatic premises. 18 U.S.C.
§ 7(9). The term “offense” is ambiguous: it can refer to “a
generic crime, say, the crime of fraud or theft in general,” but
21
it can also “refer to the specific acts in which an offender
engaged on a specific occasion, say, the fraud that the
defendant planned and executed.” Nijhawan v. Holder, 557
U.S. 29, 33–34 (2009). Despite Khatallah’s arguments, we
have little trouble concluding that “offense” in the diplomatic
premises definition is circumstance specific, not categorical.
In this case, none of the “three basic reasons for adhering
to an elements-only inquiry” are present. Mathis v. United
States, 579 U.S. 500, 510 (2016). Applying the factors in
Mathis, it would be inappropriate to apply a categorical
approach to the phrase “offenses committed by or against a
national of the United States.” First, reference to the offense
“committed” does not suggest a categorical approach; instead,
it suggests the facts are what matter. See id. at 511 (citing
United States v. Hayes, 555 U.S. 415, 421 (2009) (interpreting
“offense … committed” in a circumstance-specific way)).
Courts typically apply the categorical approach when the
statute depends on “convictions” or explicitly relies on the
“elements” of a crime, not when it refers to what was
“committed.” See, e.g., id. (applying the categorical approach
in part because the Armed Career Criminal Act (ACCA) refers
to “convictions” for violent felonies). Second, the Sixth
Amendment right to a trial by jury is not implicated because
the diplomatic premises definition asks about the facts of the
offense for which the defendant is being tried at the moment,
not a past offense such as a conviction for a violent felony that
serves to aggravate a sentence in the ACCA context. Id. at
511–12. And for the same reason—there is no prior litigation
involved—there is no question of relying on facts that were
found without adversarial process. Id. at 512. We thus
conclude that a categorical approach is inappropriate to
interpret the diplomatic premises definition of the special
jurisdiction.
22
Khatallah’s third argument is that the diplomatic premises
definition can never apply to Section 1363 because that
statute’s “focus … is on the property,” as evidenced by the fact
that the defendant must “willfully and maliciously” destroy
property but does not have to “willfully and maliciously” place
a life in jeopardy. Khatallah Reply Br. 29–30; see 18 U.S.C.
§ 1363. We reject this argument as well. The special
jurisdiction definition does not apply only to offenses that “are
primarily committed against a national of the United States” or
that have a “focus on harming American persons,” so we fail
to see the significance of the statute’s “focus” when
determining whether there was sufficient evidence that
Khatallah’s crime occurred within the special jurisdiction.
In sum, the jury had ample evidence to find beyond a
reasonable doubt that Khatallah was vicariously liable for
placing American lives in jeopardy on the premises of an
overseas diplomatic mission, so it could have found, and
reasonably did find, Section 1363’s jurisdictional element
satisfied.
B
In the alternative, Khatallah argues he is entitled to a new
trial because the jury was not properly instructed about Count
16’s jurisdictional element and would have acquitted him if it
had been.
Khatallah did not object to the jury instructions, so he must
at least meet the requirements of plain error review.7 See FED.
7
Because Khatallah jointly proposed the jury instructions with
the government, the government argues that any instructional error
was invited by Khatallah and he is “barred from complaining about
it on appeal.” Gov’t Opening Br. 52 (quoting United States v.
23
R. CRIM. P. 52(b); United States v. Purvis, 706 F.3d 520, 522
(D.C. Cir. 2013) (courts review unobjected-to jury instructions
for plain error). “Under that standard,” we grant a new trial
only if there was “(1) error, (2) that is plain, and (3) that affects
substantial rights … [and] if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” Id. (cleaned up). “Meeting all four prongs of
plain error is difficult, as it should be.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (cleaned up).
In its jury instructions for Count 16, the district court
properly explained the substantive conduct required to violate
Section 1363. It also explained that because Khatallah was
charged with the enhanced version of the crime, the jury had to
find beyond a reasonable doubt that “the building was a
dwelling or the life of any person was placed in jeopardy.”
Trial Tr. 5897 (Nov. 15, 2017, PM). As to that statute’s special
jurisdiction element, the court listed the various facilities that
are covered by the diplomatic premises definition while
omitting the preface that the crime in question must be
committed “by or against a national of the United States.” Id.;
see 18 U.S.C. § 7(9).
This omission was erroneous, as the government concedes.
Violations of Section 1363 can occur only “within the special
maritime and territorial jurisdiction of the United States,” so
the government had to prove, and the jury had to find beyond a
reasonable doubt, that the damage to the Mission occurred
within that special jurisdiction. United States v. Gaudin, 515
U.S. 506, 511 (1995) (“The Constitution gives a criminal
Harrison, 103 F.3d 986, 992 (D.C. Cir. 1997)). We hold that
Khatallah’s challenge fails even under the plain-error standard, and
therefore do not reach the question whether Khatallah’s challenge is
barred by the invited error doctrine.
24
defendant the right to demand that a jury find him guilty of all
the elements of the crime with which he is charged.”). Here,
the government asserted only the diplomatic premises
definition of the special jurisdiction as its jurisdictional hook.
The jury, however, was not instructed that this definition
required the offenses be “committed by or against a national of
the United States.” 18 U.S.C. § 7(9). The instructions were
therefore erroneous: they omitted a factual element that the jury
had to find in order to convict Khatallah of violating
Section 1363. Moreover, although we need not decide the
issue, we assume for the purpose of this appeal that the error
was plain.
For the third prong of plain error, the error’s effect on
substantial rights, Khatallah has to show “a reasonable
probability that, but for the error claimed, the outcome of the
proceeding would have been different.” Greer v. United States,
141 S. Ct. 2090, 2096 (2021) (cleaned up). The error affected
Khatallah’s substantial rights only if there is a “reasonable
probability” that the jury would have acquitted him of Count
16 if properly instructed. Id. Khatallah’s arguments fall short.
Khatallah’s argument for prejudice boils down to an
implicit jury finding he claims is “[t]he only sensible way to
understand the jury’s verdicts.” Khatallah Opening Br. 49.
Khatallah points out that the jury acquitted him of all the counts
in the indictment charging him with the deaths in the Mission.
Those acquittals, he claims, are inconsistent with finding him
responsible for the first wave of the attack on the Mission.
After all, if the jury thought he was responsible as a co-
conspirator for what happened at that time, it would have found
that he was liable under Pinkerton for the deaths in the Villa
that resulted from the fire started in the first wave. Therefore,
Khatallah asserts, the jury implicitly found that he was
responsible only for what happened during the second wave of
25
the attack on the Mission, after the Americans had evacuated.8
He claims that if the jury had been properly instructed that it
could convict on Count 16 only if Khatallah committed a crime
“against a national of the United States,” the jury likely would
have acquitted him.
In addition, Khatallah maintains the jury’s conviction
under Count 16 can be explained by the jury’s finding that he
injured a dwelling. The jury was instructed that it could apply
the Section 1363 enhancement if a life was placed in jeopardy
or if the building damaged was a dwelling. During the second
wave of the attack on the Mission, Khatallah was caught on
camera while the Tactical Operations Center was ransacked,
and testimony at trial suggested that the Tactical Operations
Center was a dwelling. There were no American lives to place
in jeopardy at that point in the attack. Khatallah reasons that
the jury must have convicted him on Count 16 because of the
dwelling enhancement, because the jury was not instructed that
the offense had to be committed against a national of the United
States. Destruction of a dwelling satisfies the statutory
enhancement in Section 1363, but Khatallah says it does not
come within the special jurisdiction under the diplomatic
premises definition. Therefore, Khatallah posits, if the jury had
been properly instructed that it must find an American life was
in jeopardy, it would have likely acquitted him.9
8
The jury also acquitted Khatallah of Count 17, which was for
“destroying and injuring dwellings and property, that is, the Annex,”
so we assume that he correctly reads the verdicts to at least rule out
his criminal responsibility for what happened after the second wave
of the attack. App. 165.
9
Nor is the government arguing in this case that Khatallah’s
conviction could survive if the jury only convicted under the
26
Khatallah’s theory of an implicit jury finding is not wholly
implausible, but he has fallen short of demonstrating a
“reasonable probability” that a properly instructed jury would
have acquitted him. Greer, 141 S. Ct. at 2096. There was
overwhelming evidence that Khatallah’s co-conspirators
attacked the Mission while Americans were present, but there
is a much weaker link between Khatallah and the deaths at the
Villa. So it was eminently sensible for the jury to find both that
Khatallah was responsible for endangering American lives and
that there was reasonable doubt that he was responsible for any
deaths. See Khatallah V, 314 F. Supp. 3d at 189.
The jury could have found that Khatallah was vicariously
responsible for the first wave of the attack on the Mission
where American lives were in danger but was not responsible
for either the deaths that resulted from the first wave or the
subsequent attack on the Annex. There was substantially more
evidence linking Khatallah to the first wave of the attack in
general—when American lives were placed in jeopardy—than
there was connecting him to the specific fires that caused the
deaths at the Mission. The Libyana phone records—discussed
above and which a reasonable jury, we hold, could have found
to be authentic—showed that Khatallah was in frequent
communication with specific UBJ militants during the first
wave of the attack, but neither they nor the surveillance footage
show who set the Villa on fire. Khatallah IV, 313 F. Supp. 3d
at 183–84. We agree with the district court that “[t]he jury may
have … believed that the fires were set by other militants on
the scene—of which, according to evidence introduced at trial,
there were dozens.” Khatallah V, 314 F. Supp. 3d at 189.
“dwelling” enhancement of Section 1363, an issue we need not
decide. See supra note 6.
27
While the government argued that all those who attacked
were Khatallah’s co-conspirators, they did little to support this
assertion. Khatallah was not a member of any of the other
militias, and the government did not point to any phone records
indicating coordination with other attackers. Khatallah IV, 313
F. Supp. 3d at 183–84. The government argued at closing that
Khatallah spoke with commanders of other militias at the
Mission, but even if the jury believed that, it does not show that
Khatallah was party to an affirmative agreement with any other
militia, let alone whichever militia members killed
Ambassador Stevens and Sean Smith. Thus, there was ample
room for reasonable doubt about Khatallah’s vicarious liability
for the deaths in the Mission. A reasonable juror could acquit
for these deaths, but still find that Khatallah was liable for
placing Americans’ lives in jeopardy.10 In fact, given the
strength of the evidence for Khatallah’s conspiratorial
involvement in the first wave of the attack, that is the best
explanation of the verdicts. There was therefore no reasonable
probability the jury would have acquitted Khatallah on Count
16 if properly instructed.
Finally, we note that Khatallah’s interpretation of the
jury’s verdicts is difficult to reconcile with the evidence. For
the jury to have implicitly found that Khatallah was not
responsible for the first wave of attacks, it would have had to
believe that Khatallah—who was portrayed by multiple
witnesses as UBJ’s leader—was totally uninvolved in his
subordinates’ plan to launch a terrorist attack even though he
joined it halfway through, armed with an AK-47. The jury also
10
There was also plenty of evidence that UBJ members
damaged U.S. property even if they had nothing to do with burning
down the Villa. For example, one UBJ member and close associate
of Khatallah’s was identified on video pouring gasoline on a Mission
vehicle to light it on fire.
28
would have had to discount the telephone records and al-
Ubydi’s testimony, which the court found credible. Finally,
Khatallah’s theory was not presented to the jury and was
inconsistent with the defense offered. The defense’s primary
argument was that Khatallah showed up knowing nothing of
the attack and went to the Mission just to “see what was going
on,” not that he joined the conspiracy when he arrived. Trial
Tr. 6133–34 (Nov. 16, 2017, PM). The jury’s convictions
indicate it did not accept the defense’s account.
Khatallah has not demonstrated it is reasonably probable
that this jury would have acquitted him if it had been properly
instructed as to Count 16. See Greer, 141 S. Ct. at 2096.
Finding the instructional error did not affect his “substantial
rights,” we decline to vacate his conviction.11
IV
Khatallah challenges his conviction on Count 18 for using
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c). He claims that his Section
1363 conviction does not qualify as a predicate crime of
violence and that the district court therefore should have
granted his motion for an acquittal on Count 18. Alternatively,
he claims his conviction on Count 18 should be vacated
because the district court wrongly instructed the jury that
violating Section 1363 was a crime of violence.12
11
Because we decline to vacate Count 16, we need not address
Khatallah’s claim for vacatur of his other convictions because they
were “premised upon Count 16.” Khatallah Opening Br. 52.
12
Khatallah also argues that the application of Section 924(c)
in this case would be impermissibly extraterritorial. Section 1363
expressly applies to offenses committed “within the special maritime
29
A
Section 924(c) subjects any person who uses or carries a
firearm “during and in relation to any crime of violence” to a
mandatory minimum prison sentence of five years, 18 U.S.C.
§ 924(c)(1)(A)(i), to run consecutively with any other prison
sentence, id. § 924(c)(1)(D)(ii). An enhanced minimum
sentence of ten years applies if the defendant used a
semiautomatic assault weapon. Id. § 924(c)(1)(B)(i).
Section 924(c) defines two categories of offenses as
predicate crimes of violence. Its elements clause covers any
felony that “has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.” 18 U.S.C. § 924(c)(3)(A). And its residual clause
covers any felony that “by its nature, involves a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense.” Id.§ 924(c)(3)(B). The Supreme Court has held that the residual
clause is void for vagueness. United States v. Davis, 139 S. Ct.
2319 (2019). An offense must therefore fall within the
elements clause to support a Section 924(c) conviction.
We apply a “categorical approach” to determine whether
an offense falls within Section 924(c)’s elements clause.
Davis, 139 S. Ct. at 2328. Under this approach, we “focus
solely on whether the elements of the crime of conviction”
require the use, attempted use, or threatened use of physical
force against the person or property of another, “while ignoring
and territorial jurisdiction of the United States.” And after Khatallah
filed his opening brief, we held that the territorial reach of Section
924(c) is coextensive with the territorial reach of the underlying
predicate offense. United States v. Garcia Sota, 948 F.3d 356, 362
(D.C. Cir. 2020). In light of Garcia Sota, Khatallah presses his
extraterritoriality claim only to preserve it for further review.
30
the particular facts of the case.” Mathis, 579 U.S. at 504. In
other words, we presume that the defendant’s conviction
“rested upon nothing more than the least of the acts
criminalized.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)
(cleaned up).
Some statutes, known as “divisible” statutes, “list elements
in the alternative, and thereby define multiple crimes.” Mathis,
579 U.S. at 505. When a statute defines multiple offenses and
only some of them are crimes of violence, we apply a
“modified categorical approach.” Id. Under this approach, we
look to “a limited class of documents,” such as the indictment,
jury instructions, and verdict form, “to determine what crime,
with what elements, a defendant was convicted of.” Id. at 505–
06; see Johnson v. United States, 559 U.S. 133, 144 (2010). If
the relevant documents establish with “legal certainty” that the
conviction was for a crime of violence, the conviction may be
used as a predicate offense. Mathis, 579 U.S. at 515 n.6
(cleaned up). If the relevant documents are “ambiguous,” the
conviction “may not be used.” United States v. Mathis, 963
F.2d 399, 410 (D.C. Cir. 1992).
Other statutes merely list “various factual means of
committing a single element.” Mathis, 579 U.S. at 506. For
these statutes, we may not consider how the defendant
committed the offense. See id. at 509. If any of the means does
not require the use, attempted use, or threatened use of physical
force against the person or property of another, then the offense
is not a crime of violence. See id.
Count 18 of the indictment charged that Khatallah and
others used or carried firearms during and in relation to several
crimes of violence, namely the offenses charged in Counts 1–
17. The jury instructions likewise stated without qualification
that those counts charged predicate crimes of violence. The
31
jury acquitted Khatallah on Counts 3–15 and 17. And the
government has declined to argue on appeal that Counts 1 and
2, which charged Khatallah with conspiring to provide material
aid to terrorists and providing material aid to terrorists in
violation of Section 2339A, were crimes of violence. That
leaves Count 16, charging Khatallah with an offense under
Section 1363, as the only possible basis for sustaining his
conviction on Count 18. As noted above, Section 1363
imposes criminal liability on anyone who “willfully and
maliciously destroys or injures any structure, conveyance, or
other real or personal property, or attempts or conspires to do
such an act” within the special maritime and territorial
jurisdiction of the United States. 18 U.S.C. § 1363.
B
We begin with Khatallah’s acquittal argument. Khatallah
argues that Count 16 did not charge a crime of violence because
it is possible to violate Section 1363 by conspiring to injure
property. Mere conspiracy does not necessarily involve the
use, attempted use, or threatened use of force. As a result,
Khatallah concludes, no properly instructed jury could have
based a Section 924(c) conviction on Count 16.
The government concedes that conspiring to injure
property is not a crime of violence. But it contends that Section
1363 is divisible into an inchoate offense of conspiring to injure
property and a substantive offense of injuring property, the
latter of which is a crime of violence. And it argues that
documents such as the indictment show to the requisite degree
of certainty that Khatallah was convicted of the substantive
32
offense. We agree with both contentions, and we find more
than sufficient evidence to support the conviction.13
1
Section 1363 is divisible. The law has long treated
conspiracy to commit a crime and the substantive crime that is
the object of the conspiracy as distinct offenses rather than
alternative means. There is no reason to think Section 1363
departed from this settled principle.
In American Tobacco Co. v. United States, 328 U.S. 781(1946), the petitioners had been convicted of both
monopolization and conspiracy to monopolize. Id. at 783.
Both convictions rested on the same statutory provision, which
subjected any person “who shall monopolize, or attempt to
monopolize, or combine or conspire with any other person or
persons, to monopolize” to a fine of up to $5,000,
imprisonment of up to a year, or both. See id. at 784 n.2
(cleaned up). The petitioners asserted that they had been twice
convicted of the same offense, in violation of the Double
Jeopardy Clause. Id. at 788. The Supreme Court disagreed
because “[i]t long has been settled … that a conspiracy to
commit a crime is a different offense from the crime that is the
object of the conspiracy.” Id. at 789 (cleaned up).
The Court reaffirmed this principle in Callanan v. United
States, 364 U.S. 587 (1961). The petitioner in that case had
been convicted of both Hobbs Act robbery and conspiracy to
commit Hobbs Act robbery. Id. at 587–88. Both convictions
13
Section 1363 also covers attempting to injure property. An
attempted crime of violence is not always itself a crime of violence.
See United States v. Taylor, 142 S. Ct. 2015, 2021–22 (2022). But
neither party suggests that the inclusion of attempt affects the
outcome here, so we do not consider that question.
33
arose from the same statute, which subjected any person who
“obstructs, delays, or affects commerce or the movement of
any article or commodity in commerce, by robbery or extortion
or attempts or conspires to do so” to a fine of up to $10,000, a
prison term of up to 20 years, or both. See id. at 588 n.1
(cleaned up). The district court sentenced the petitioner “to
consecutive terms of twelve years on each count,” for a total
sentence of 24 years. Id. at 588. The petitioner argued that he
was either subjected to a punishment exceeding the statutory
maximum or to “two penalties” for the same offense. Id. at
589. The Supreme Court affirmed the sentence. It stressed that
“[t]he distinctiveness between a substantive offense and a
conspiracy to commit is a postulate of our law.” Id. at 593. As
a result, “the commission of the substantive offense and a
conspiracy to commit it are separate and distinct offenses.” Id.(cleaned up).
Khatallah offers three reasons why, despite this
established principle, Section 1363’s conspiracy and
substantive offenses are not distinct. None persuades.
First, Khatallah notes that conspiring to injure property
carries the same penalty as actually doing so. It is true that two
statutory alternatives are distinct offenses if they carry different
punishments. Mathis, 579 U.S. at 518. But statutory
alternatives can be distinct offenses even if they do not. As
noted above, the statutes in both American Tobacco and
Callanan imposed the same penalty for both conspiracy and the
substantive offense. See 364 U.S. at 588 n.1; 328 U.S. at 784
n.2.
Second, Khatallah asserts that because Section 1363
enumerates destroying, injuring, attempting, and conspiring in
a single list of alternatives, there is no textual basis for treating
some of them as elements and others as means. Because
34
destroying and injuring property are not distinct offenses, he
reasons, conspiracy must also be just another factual means for
committing the one statutory offense. Callanan forecloses this
argument as well, for the statute at issue there had the same
structure as Section 1363. It listed different means of
committing the substantive offense (“obstructs, delays, or
affects commerce or the movement of any article or commodity
in commerce, by robbery or extortion”), followed by attempt
(“or attempts … to do so”), followed by conspiracy (“or
conspires to do so”). See 364 U.S. at 588 n.1 (cleaned up). Yet
the Court held that the statute created a distinct conspiracy
offense.
Third, Khatallah relies on the jury instructions, which
stated that he satisfied the first element of the offense charged
in Count 16 if he “injured or destroyed or attempted to injure
or destroy or aided and abetted another to do the same or
participated in a conspiracy to injure or destroy” property.
Trial Tr. 5896–97 (Nov. 15, 2017, PM). These instructions are
irrelevant to the question whether Section 1363 is divisible.
Where “authoritative sources of [federal] law” establish that a
federal statute is divisible, we cannot rely on instructions from
a single trial to reach a contrary conclusion. See Mathis, 579
U.S. at 517–19.
2
Because Section 1363 is divisible, we consider whether the
documents referenced in Mathis show with legal certainty that
a properly instructed jury would have convicted Khatallah of
the substantive offense. See 579 U.S. at 505–06. Count 16 of
the indictment charged that Khatallah “did willfully and
maliciously destroy and injure” the Mission. App. 17. It did
not charge him with conspiracy. Therefore, a properly
instructed jury would have been told that, to convict Khatallah
35
as charged, it needed to find that he injured the Mission, either
directly or through Pinkerton co-conspirator liability. While a
properly instructed jury could have convicted Khatallah of a
substantive Section 1363 offense through Pinkerton liability, it
is legally certain that a jury so instructed could not have
convicted Khatallah of mere conspiracy.14
3
Finally, we consider whether a properly instructed jury
could have found either that Khatallah himself used a firearm
while committing a substantive offense of injuring property
within the special maritime and territorial jurisdiction of the
United States, which would make him directly liable for
violating Section 924(c), or that one of his co-conspirators did
so foreseeably and within the scope of the material-support
conspiracy, which would make Khatallah liable for the co-
conspirator’s violation of Section 924(c) under Pinkerton.
Ample evidence existed to support a conviction for a
substantive Section 1363 offense under Pinkerton. As
discussed above, plenty of evidence showed that Khatallah’s
co-conspirators damaged the Mission foreseeably and within
the scope of the conspiracy. See supra Part III. Likewise,
plenty of evidence showed that Khatallah’s co-conspirators
used firearms during their attack on the Mission. Video
cameras captured two co-conspirators, Jamaica and Dijawi,
carrying AK-47s while participating in the first wave of the
attack. The government presented this video evidence at trial,
and a witness identified both Jamaica and Dijawi and the
14
Because the indictment unambiguously charged only the
substantive offense, we need not decide whether, in the posture of a
motion for acquittal, the necessary legal certainty would be absent if
the indictment had charged both the substantive offense and
conspiracy.
36
weapons they were carrying. Moreover, the use of firearms
obviously would further a conspiracy to attack the Mission, and
it was foreseeable that serious weapons like AK-47s would be
needed to launch an open attack on a U.S. diplomatic facility.
The jury thus had a reasonable basis for convicting Khatallah
on a Pinkerton theory of liability for Count 18.
Khatallah objects that we do not know whether the jury
predicated the Section 924(c) conviction on a substantive
offense of injuring property, as opposed to the offense of
conspiring to do so, because the instructions permitted the jury
to convict on Count 16 for a conspiracy offense and then stated
without qualification that the offense charged in Count 16 was
a crime of violence. Trial Tr. 5897–98 (Nov. 15, 2017, PM).
This argument is misplaced in the context of an acquittal
motion, which, as explained earlier, tests sufficiency against
“how a properly instructed jury would assess the evidence,” not
on “how the jury was instructed.” United States v. Hillie, 14
F.4th 677, 682 (D.C. Cir. 2021) (cleaned up). Because a
properly instructed jury could readily have convicted on Count
18, the district court properly denied Khatallah’s acquittal
motion.
C
We now turn to Khatallah’s challenge to the jury
instructions on Count 18. Because Khatallah did not object to
the instructions below, we review this claim only for plain
error. FED. R. CRIM. P. 52(b).15
15
The government argues that Khatallah invited any error by
jointly proposing the instructions, and that his challenge to the
instructions is thus unreviewable. As with his challenge to his
Section 1363 conviction, Khatallah cannot show plain error, so we
need not resolve whether the invited-error doctrine applies here.
37
The parties dispute whether the instructions on Count 16
impermissibly allowed the jury to convict Khatallah of an
uncharged conspiracy offense, which could not serve as a
predicate crime of violence for the Section 924(c) conviction,
or whether the mention of conspiracy in Count 16 simply
referred to instructions allowing the jury to convict Khatallah
of a substantive offense under Pinkerton. The parties also
dispute whether any instructional error in this regard was
sufficiently clear or obvious. We need not resolve either of
these disputes because any error, even if clear or obvious, was
not prejudicial.
To satisfy the third requirement of plain-error review,
Khatallah must show “a reasonable probability that, but for the
error, the outcome of the proceeding would have been
different.” Greer, 141 S. Ct. at 2093 (cleaned up). For reasons
explained above, Khatallah cannot make that showing.
Overwhelming evidence established Khatallah’s Pinkerton
liability for his co-conspirators’ acts injuring the Mission. And
video evidence plainly showed the co-conspirators using
firearms while doing so. A jury properly instructed that only a
substantive Section 1363 offense qualifies as a crime of
violence would still very likely have convicted on Count 18.
For these reasons, we decline to set aside Khatallah’s
conviction under Section 924(c).
V
Khatallah argues that the government’s improper and
prejudicial comments during closing arguments require a new
trial. Specifically, Khatallah claims that the prosecutor made
unlawful inflammatory statements by appealing to the jury’s
emotions and nationalism, while also denigrating the factual
stipulations to which the government and defense had agreed.
38
We review the district court’s denial of a mistrial motion
complaining of prosecutorial misconduct for an abuse of
discretion. United States v. Moore, 651 F.3d 30, 50 (D.C. Cir.
2011) (per curiam). When a prosecutor commits misconduct
to which the defendant objected at trial, the government bears
the burden on appeal to show that the unlawful remarks were
not substantially prejudicial. United States v. Gartmon, 146
F.3d 1015, 1026 & n.5 (D.C. Cir. 1998) (citing United States v.
Olano, 507 U.S. 725, 734 (1993)).
Reviewing the record, we agree with Khatallah that the
prosecutor’s remarks were plainly improper and unbefitting a
federal prosecutor. But because the misconduct did not
substantially prejudice Khatallah, the district court did not
abuse its discretion in denying the motion for a new trial.
A
The government does not contest, nor could it on this
record, that the prosecutor’s statements in her closing rebuttal
crossed the line. See Gov’t Opening Br. 63.
It is settled law that “a prosecutor may not use the bully-
pulpit of a closing argument to inflame the passions or
prejudices of the jury or to argue facts not in evidence.” United
States v. Childress, 58 F.3d 693, 715 (D.C. Cir. 1995) (per
curiam). So during closing arguments, prosecutors may not
sensationalize the facts or seek to turn jurors’ perceived
prejudices or favoritism against a defendant. See Moore, 651
F.3d at 51–52. Nor may the government weaponize a jury’s
allegiance to their Nation or incite jurors to protect their
community or act as its conscience. See United States v. Vega,
826 F.3d 514, 525 (D.C. Cir. 2016) (per curiam); see also
United States v. Johnson, 231 F.3d 43, 47 (D.C. Cir. 2000).
The law also “universally condemn[s]” arguments that ask
jurors to identify themselves with victims “because [they]
39
encourage[] the jury to depart from neutrality and to decide the
case on the basis of personal interest and bias rather than on
evidence.” Caudle v. District of Columbia, 707 F.3d 354, 359
(D.C. Cir. 2013) (internal quotation marks and citation
omitted); see also United States v. Hall, 979 F.3d 1107, 1119
(6th Cir. 2020); Arrieta-Agressot v. United States, 3 F.3d 525,
527 (1st Cir. 1993) (reversing drug-distribution convictions
because of prosecutor’s closing arguments, in which he told the
jury that “[n]obody has the right to … poison our children[,]”
and applauded the Coast Guard for “protecting us” from “the
evil of drugs”). When a prosecutor presses such an us-versus-
them narrative in closing remarks to the jury, she walks a
perilous legal line. See Viereck v. United States, 318 U.S. 236,
247–48 & n.3 (1943); United States v. DeLoach, 504 F.2d 185,
193 (D.C. Cir. 1974); United States v. Moore, 375 F.3d 259,
260 (3d Cir. 2004) (reversing conviction because, among other
things, the prosecutor in closing statements delivered on
September 10, 2002, repeatedly referred to a defendant on trial
for arson and unlawful gun possession as a “terrorist”).
The Assistant U.S. Attorney who gave the government’s
closing rebuttal surely knew this longstanding and foundational
rule of law. On top of that, the district court had previously
ordered her not to refer to the United States Mission in
Benghazi, Libya as “our” Mission. See Trial Tr. 4456 (Nov. 1,
2017, AM) (“[J]ust refer to it as the U.S. Mission, okay?” “Yes,
sir.”); see also Khatallah IV, 313 F. Supp. 3d at 194. The court
had also specifically directed the prosecution “to avoid
gratuitous or unnecessary uses of the term[] [terrorist].” Order
at 1–2, United States v. Khatallah, 313 F. Supp. 3d 176 (No.
1:14-cr-00141), ECF No. 371. Yet in her closing rebuttal, the
prosecutor brushed off the court’s orders. She began:
At this moment, I cannot tell you how proud I am to
represent the United States of America and how
40
honored I am to call the United States Mission in
Benghazi ours. Yes, it is ours. And … Ambassador
Christopher Stevens is our son. And brave American
Sean Smith is an American son. And Glen Doherty
and Tyrone Woods, Navy Seals, are our American
sons.
And I cannot tell you how proud I am. And yes, they
are ours. And the consulate and the other United
States facility, the CIA Annex, that’s ours too. And I
will take that to the bank, and I will take full
responsibility for saying that that is ours.
Trial Tr. 6134–35 (Nov. 16, 2017, PM).
The prosecutor then turned to the defense’s argument that
Khatallah had an innocent explanation for being at the Mission
on the night of September 11th. She continued:
The defendant is guilty as sin. And he is a stone cold
terrorist. Innocent presence? Innocent presence? …
His hit squad was searing through the United States
Mission, searing violently with rage—his rage against
America, brandishing AK-47s, [rocket-propelled
grenades] and all sorts of weapons to destroy us, those
innocent men who are on the compound.
Trial Tr. 6135 (Nov. 16, 2017, PM) (emphasis added).
Khatallah’s counsel objected repeatedly. Id. at 6136.
The prosecutor again referred to “our American facilities”
and “our Mission[,]” personalizing the charged crimes as
attacks on the jurors and the prosecution. Trial Tr. 6149 (Nov.
16, 2017, PM); see also id. at 6146 (asserting that Khatallah is
guilty of “attacking our facilities”). She accused Khatallah’s
41
“hit squad” of “attacking us[,]” and asked rhetorically “[w]hy
are you attacking us?” Id. at 6136 (emphases added).
Later, the prosecutor turned to denigrating the written
stipulations Khatallah had entered into evidence, and which the
government itself had agreed were accurate. Those stipulations
were the product of “lengthy negotiation[s]” between
Khatallah and the government, and the parties had agreed to “a
preamble that explained to the jury that the stipulations were
summaries of classified information concerning the [Benghazi]
attacks[.]” Khatallah IV, 313 F. Supp. 3d at 184. Because the
defense lacked access to the underlying classified information,
they did not know the sources behind the information and could
not call them to testify. Id.; see also Trial Tr. 5852–54 (Nov.
15, 2017, PM) (explanation of stipulations).
The prosecutor nevertheless disparaged the stipulations as
“words on a piece of paper” and unfavorably contrasted them
with “witnesses who you can see … who have been cross-
examined, who have been challenged.” Trial Tr. 6150 (Nov.
16, 2017, PM); see also id. at 6153–54 (again dismissing
stipulations as “words on a piece of paper,” and asserting that
jurors “do not know the reliability of them whatsoever”).
Defense counsel objected, and the court said it would deal with
the objections “[a]fterwards.” Id. at 6150. At a bench
conference immediately after the government closed,
Khatallah’s counsel lodged several objections and moved for a
mistrial, asking the court to reserve its decision until after the
jury verdict. Id. at 6155–56.
We expect better from an attorney representing the United
States. See Berger v. United States, 295 U.S. 78, 88 (1935)
(although a prosecutor “may strike hard blows, [she] is not at
liberty to strike foul ones”); United States v. McGill, 815 F.3d
846, 920 (D.C. Cir. 2016) (per curiam) (“A just outcome
42
obtained through a fair, evenhanded, and reliable process
should be the government’s goal; it is not to win at any cost.”)
(emphasis in original).
The “sole purpose of closing argument is to assist the jury
in analyzing the evidence[.]” Moore, 651 F.3d at 52 (internal
quotation marks and citation omitted). Yet here, the prosecutor
repeatedly encouraged the jury to “substitute emotion for
evidence[,]” and she made an appeal to nationalism that was
“wholly irrelevant to any facts or issues in the case, the purpose
and effect of which [was] only … to arouse passion and
prejudice.” Vega, 826 F.3d at 525 (internal quotation marks
and citation omitted). In many regards, the prosecutor’s call to
arms was similar to the closing speech the Supreme Court
found to be “highly prejudicial” in Vierick v. United States.
318 U.S. at 248. In that case, the government tried a registered
German foreign agent during World War II for failing to
divulge certain propaganda activity. Id. at 239–40. In his
closing remarks, the prosecutor told the jury that the “American
people are relying upon you … for their protection against this
sort of crime, just as much as they are relying upon the
protection of the men who man the guns in Bataan
Peninsula[.]” Id. at 247 n.3. He then “call[ed] upon every one
of [the jurors] to do [their] duty.” Id. at 247–48 n.3. While the
battles fought by the United States have changed, the law’s
condemnation of such rhetoric has not.
The prosecutor here further erred by maligning the
stipulations entered into evidence by the defendant. In the
stipulations, which were based on classified sources, the
government agreed that it possessed certain information or that
a person known to the government would, if called to the stand,
testify to certain facts. See, e.g., Trial Tr. 5853–54 (Nov. 15,
2017, PM). Especially because of the defense’s limited access
to the classified information underlying the stipulations, and
43
the government’s express agreement to them, the prosecutor
acted improperly in portraying the stipulations as
untrustworthy and advising the jury to disbelieve them. Said
another way, the prosecutor impermissibly and “intentionally
misrepresent[ed] the evidence.” Moore, 651 F.3d at 53.
B
Still, not all prosecutorial misconduct justifies vacating a
jury verdict. “A mistrial is a severe remedy—a step to be
avoided whenever possible, and one to be taken only in
circumstances manifesting a necessity therefor.” United States
v. McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004) (citation
omitted). Here, if the prosecutor’s rebuttal substantially
prejudiced Khatallah, a mistrial would be required. See Moore,
651 F.3d at 50. To assess whether the prosecutor’s rebuttal
substantially prejudiced Khatallah, we consider “(1) the
closeness of the case; (2) the centrality of the issue affected by
the error; and (3) the steps taken to mitigate the error’s effects.”
Id. at 51 (quoting United States v. Becton, 601 F.3d 588, 598
(D.C. Cir. 2010)). While we find the prosecutor’s rebuttal
argument “deeply troubling,” the government has met its
burden of showing that the wrongful remarks did not cause
Khatallah “substantial prejudice.” McGill, 815 F.3d at 921.
First, on the charges for which he was convicted, the case
against Khatallah was not close. See Moore, 651 F.3d at 51.
The jury convicted Khatallah for conspiring to provide, and
providing, material support to terrorists, maliciously injuring
property in the special jurisdiction of the United States, and
carrying a firearm during a crime of violence. The government
presented powerful and mutually reinforcing evidence of
Khatallah’s guilt on all four counts. See Parts III–IV, supra.
Multiple witnesses attested to Khatallah’s participation in the
attack on the Mission, and their testimony was bolstered by
44
corroborating phone records and contemporaneous video
footage from inside the Mission compound.
More specifically, Bilal al-Ubydi, a man overseeing a
group of Libyan government militias, testified that several days
before the attack he saw Khatallah, together with compatriots
Aymen Dijawi and Zakaria Barghathi, securing munitions
from a local military force.16 On September 11th, both Dijawi
and Barghathi were seen on camera attacking the U.S.
Mission.17 Phone records show that Khatallah was in contact
with both men throughout the evening of September 11th,
including right around the time that they were filmed at the
compound. See Khatallah V, 314 F. Supp. 3d at 192–93.
The government also connected Khatallah with a third
attacker from that night, a comrade of his known as Jamaica.
According to FBI Special Agent Michael Clarke, Khatallah
said during his interrogation that he spoke on the phone with
Jamaica between 8:30 p.m. and 9 p.m. on September 11th while
Jamaica was standing outside of the Mission. Trial Tr. 3867–
68 (Oct. 30, 2017, AM); id. at 3935–36. Two witnesses
identified Jamaica on camera carrying a gasoline can and
firearm during the subsequent attack.18
16
Trial Tr. 2399, 2460–61, 2463–72 (Oct. 17, 2017, PM) (al-
Ubydi testimony).
17
Trial Tr. 2548–49, 2551–52, 2556–57, 2562 (Oct. 18, 2017,
AM) (al-Ubydi testimony); Trial Tr. 5062–63, 5066, 5077, 5059–61
(Nov. 7, 2017, AM) (Majrisi testimony); see also Trial Tr. 3869 (Oct.
30, 2017, AM) (Clarke testimony).
18
Trial Tr. 5062, 5071–72, 5075–76 (Nov. 7, 2017, AM)
(Majrisi testimony); Trial Tr. 2561 (Oct. 18, 2017, AM) (al-Ubydi
testimony); see also Khatallah V, 314 F. Supp. 3d at 193.
45
Evidence at trial also firmly tied Khatallah to the scene of
the attack. Al-Ubydi testified that Khatallah called him at
approximately 10:15 p.m. on September 11th and told him in a
threatening tone to withdraw two men who were stationed near
the Mission. Trial Tr. 2531–34, 2543 (Oct. 18, 2017, AM).
Khatallah told al-Ubydi that he was calling from near one of
the militia’s trucks guarding an orchard close to the Mission.
Id. at 2537–39 (al-Ubydi testimony). Phone records confirm
that Khatallah called al-Ubydi at 10:20 p.m. that night, albeit
for a shorter period of time than al-Ubydi initially
remembered.19
Special Agent Clarke also placed Khatallah near the
Mission that evening. According to Clarke, Khatallah told the
FBI in an interrogation that he had set up a roadblock near the
Mission while the attack was underway. Trial Tr. 3901–04
(Oct. 30, 2017, AM). Khatallah said he used the roadblock to
turn away militiamen “responding” to the attack. Id. at 3903
(Clarke testimony). According to another witness, Ali Majrisi,
Khatallah later accused one of those militias of “interfer[ing]”
with his plan to “kill everybody” associated with the Mission.
Trial Tr. 4994–95 (Nov. 6, 2017, PM). Khatallah also told
Clarke that, while he was near the Mission, he spoke by phone
with a commander of a militia tasked with protecting the
Mission. Trial Tr. 3946–48 (Oct. 30, 2017, PM); Trial Tr. 2400
(Oct. 17, 2017, PM). Khatallah asked the commander why the
militia was shooting at “us[,]” and warned him that “[i]f you
kill one of us, you will be in trouble.” Trial Tr. 3947–48 (Oct.
30, 2017, PM) (Clarke testimony).
Finally, Khatallah was filmed entering a building on the
U.S. compound armed with an automatic rifle just before
19
See Trial Tr. 2608–09 (Oct. 18, 2018, PM); App. 868, at line
1608 (phone records); Trial Tr. 5583–85 (Nov. 13, 2017, PM).
46
midnight on September 11th.20 According to two witnesses
viewing the video footage, Khatallah was accompanied by
Dijawi, one of the men who had attacked the Mission in a
previous wave and with whom Khatallah had picked up
weapons. See Trial Tr. 5085 (Nov. 7, 2017, AM) (Majrisi
testimony); Trial Tr. 2632 (Oct. 18, 2017, PM) (al-Ubydi
testimony). After Khatallah exited the building, he gestured
for several men to follow him. See Gov’t Ex. 301-44 (video
evidence) (time stamp 00:02:25–00:02:32); see also Khatallah
V, 314 F. Supp. 3d at 200.
In short, the record evidence overwhelmingly supports the
jury’s verdict, leaving little practical room for the prosecutor’s
appeals to nationalism and emotion to operate.
Second, the district court took substantial steps to ensure
that Khatallah was tried by an impartial jury and to mitigate
any prejudicial effects of the prosecutor’s inflammatory and
misleading remarks. See Moore, 651 F.3d at 51.
Before the trial began, Judge Cooper required prospective
jurors to complete a 28-page questionnaire to screen out jurors
with relevant biases. See Amended Prospective Juror
Questionnaire, United States v. Khatallah, 313 F. Supp. 3d 176(No. 1:14-cr-00141), ECF No. 328. The questionnaire asked
prospective jurors whether “non-citizens accused of crimes in
U.S. courts should be afforded the same constitutional rights as
U.S. citizens[,]” whether “‘proof beyond a reasonable doubt’ is
too heavy a burden for the prosecution to have to meet in a
terrorism trial[,]” and how difficult the prospective jurors
would find it “to presume that a person who is charged with
20
See Gov’t Ex. 301-44 (video evidence) (time stamp 23:54–
23:55); Trial Tr. 2632–38 (Oct. 18, 2017, PM) (al-Ubydi testimony);
Trial Tr. 5062, 5080–82, 5084–85 (Nov. 7, 2017 AM) (Majrisi
testimony); see also Khatallah V, 314 F. Supp. 3d at 191.
47
conspiracy to kill United States citizens is innocent[.]” Id. at
24–26. Potential jurors were also asked for their views on the
Islamic faith and United States policy toward predominantly
Muslim countries, as well as the potential jurors’ history with
people of Libyan or Arabic descent. Id. at 9, 12; see also
Khatallah IV, 313 F. Supp. 3d at 194 (district court explaining
its efforts “to ensure that the defendant received a trial as free
as possible of nationalistic and cultural biases”).
The district court also gave an instruction on the spot to
mitigate the effect of the government’s inflammatory rebuttal.
Shortly after the government spoke, Judge Cooper reminded
the jury that “the arguments of counsel and statements of
counsel and questions by counsel are not evidence in the case.”
Trial Tr. 6158 (Nov. 16, 2017, PM). The court added that “it
is up to you to … disregard arguments of counsel as evidence.”
Id. at 6159. He asked the jury “[i]s that clear?” and the jury
indicated that it understood. Id. Several days later, just before
the jurors began their deliberations, Judge Cooper again
emphasized that “the [closing] arguments of the lawyers that
you heard … are not evidence in the case, nor are the lawyers’
characterization of the evidence[.]” Trial Tr. 6197 (Nov. 20,
2017, AM).
The district court had made this point before. At the
beginning of trial, Judge Cooper told the jury that lawyers’
arguments are not evidence. Trial Tr. 543 (Oct. 2, 2017, AM).
The judge also instructed jurors that they should not allow the
presence of Arabic translators and Arabic-speaking witnesses
to “influence or bias you in any way[.]” Id. at 547. Then, as
the trial drew to a close, he repeated that “[t]he statements of
the lawyers are not evidence.” Trial Tr. 5867 (Nov. 15, 2017,
PM). The court’s concluding jury instructions, which it
provided before the parties made their closing arguments,
directed jurors to reach their decisions free of prejudice. Judge
48
Cooper told jurors that they were to “determine the facts
without prejudice, fear, sympathy or favoritism[,]” and he
specifically warned them against being “improperly influenced
by anyone’s race, ethnic origin or gender.” Id. at 5866; accord
Jury Instructions at 2, United States v. Khatallah, 313 F. Supp.
3d 176 (No. 1:14-cr-00141), ECF No. 464 (“Jury
Instructions”).
Though not a panacea, the trial judge’s instructions
mitigated the prosecutor’s improper appeals to passion and
prejudice. See Moore, 651 F.3d at 54 (instruction that lawyers’
arguments are not evidence is “usually a strong ameliorative
consideration for prosecutorial misconduct during … closing
argument”) (citation omitted); see also McGill, 815 F.3d at
922; Childress, 58 F.3d at 716.
The district court also specifically countered the
prosecutor’s misleading statements about the evidentiary
stipulations. Shortly after the prosecutor concluded her
rebuttal, Judge Cooper told the jury that the stipulations in
evidence “were agreements that were negotiated between the
defense and the government very carefully[,]” and that the jury,
“in assessing the meaning of the stipulation[s],” should “read
them carefully … [and] take them as they are written. No more,
no less.” Trial Tr. 6159 (Nov. 16, 2017, PM). Later, just before
the jurors began their deliberations, the court stated explicitly
that the evidence included “the stipulations between the
parties[,]” and reminded them to read the written instructions
about the stipulations. Trial Tr. 6197 (Nov. 20, 2017, AM).
Those instructions reminded jurors that, “[d]uring the trial, you
were told that the parties had stipulated—that is, agreed—to
certain facts. You should consider any stipulation of fact to be
undisputed evidence.” Jury Instructions at 2, ECF No. 464;
accord Trial Tr. 5866 (Nov. 15, 2017, PM).
49
Khatallah contends that the judge’s post-rebuttal
instruction did not address the real harm from the prosecutor’s
dismissal of the stipulation—her claim that stipulations are
inherently less trustworthy than live witnesses. But the judge
made clear that the jury should take the stipulations as
“undisputed evidence[,]” and he pointed out that the
government had agreed to them after careful negotiation. Trial
Tr. 5866 (Nov. 15, 2017, PM); accord Jury Instructions at 2,
ECF No. 464; see also Trial Tr. 6159 (Nov. 16, 2017, PM).
That drained the prosecutor’s ill-considered attack of much of
its force. Given that, the district court had good reason to be
“confident that the[] repeated explanations of the nature and
legal effect of the stipulations … mitigated any potential
confusion caused by the government’s comment in its rebuttal
argument.” Khatallah IV, 313 F. Supp. 3d at 192.
Third, we “owe[] deference to the district court’s
assessment of … a statement’s prejudicial impact on the jury.”
Moore, 651 F.3d at 51 (citation omitted); see also McLendon,
378 F.3d at 1113. Judge Cooper was present for the entire trial
and could see how the jury reacted to the prosecutor’s remarks
and to the court’s instructions. His careful findings that “the
jury in this case did not rise to the [government’s] bait[,]” and
that the “improper attempts to elicit sympathy for the victims
were futile or perhaps even counter-productive[,]” Khatallah
IV, 313 F. Supp. 3d at 194, 196, are borne out by the record.
For example, the jurors’ deliberations spanned five days,
see App. 972–74 (docket entries), and the jury sent several
substantive questions to the judge as they weighed the facts,
see, e.g., Note from Jury at 1, United States v. Khatallah, 313
F. Supp. 3d 176 (No. 1:14-cr-00141), ECF No. 486 (“What is
the definition of ‘brandishing’ in [C]ount 18?”); Note from
Jury at 1, United States v. Khatallah, 313 F. Supp. 3d 176 (No.
1:14-cr-00141), ECF No. 483 (“Were we provided with all
50
available surveillance video at the [M]ission?”). The jury then
acquitted Khatallah on all but four of the eighteen charges
against him, and it made an express finding that Khatallah’s
actions did not result in death. As the district court observed,
the jury’s mixed verdict suggests that its decisionmaking was
not inflamed or driven by the prosecutor’s regrettable appeals
to passion and prejudice. See Khatallah IV, 313 F. Supp. 3d at
196. Notably, the jury acquitted on the charges most directly
implicated by the prosecutor’s incendiary rhetoric—those
accusing Khatallah of killing Americans. See United States v.
Small, 74 F.3d 1276, 1284 (D.C. Cir. 1996) (finding a jury’s
acquittal on the charge most connected to a prosecutor’s
wrongful remarks to be “a strong indication that any prejudice
did not impermissibly infect [the defendant’s] conviction”).
Of course, a split verdict is not unassailable evidence that
a jury was unmoved by the government’s wrongful remarks,
especially when, as here, the government’s improper
statements addressed issues that were central to the case. Still,
the jury’s conduct in this case indicates that it “took [the
court’s] instruction[s] to heart and weighed the evidence,
unswayed by whatever passions and prejudices the
prosecutor[’s] statements might have attempted to stoke.”
McGill, 815 F.3d at 922; see also Small, 74 F.3d at 1284(finding prosecutor’s wrongful comments not substantially
prejudicial because, among other reasons, “nothing in the
record suggests that the jury did not follow the instructions that
arguments of counsel were not evidence”) (citing Richardson
v. Marsh, 481 U.S. 200, 211 (1987)).
As a result, after according due weight to the district
court’s on-the-ground judgment, the jury’s nuanced verdict and
lengthy deliberations, the overwhelming evidence of
Khatallah’s guilt, and the district court’s repeated and targeted
curative instructions, we agree with the district court that
51
Khatallah was not substantially prejudiced by the
government’s rebuttal. See Moore, 651 F.3d at 53 (Even where
allegedly unlawful prosecutorial comments “appeared at times
to address central issues in the case,” the comments were not
substantially prejudicial because “there was overwhelming
evidence of appellants’ guilt of the crimes implicated by the
prosecutor’s purported misconduct, and the district court
[repeatedly] gave general limiting instructions on the
arguments of counsel to the jury[.]”).
Khatallah responds that the prosecutor’s own conduct
shows that she expected that her rhetoric would affect the jury.
Khatallah also argues that the remarks were substantially
prejudicial because they were made in rebuttal, when he had no
opportunity to respond beyond objecting. Neither argument
succeeds.
First, the fact that a prosecutor made inflammatory and
improper statements, in violation of the district court’s orders,
does not by itself show that the government had a weak case.
If clearly wrongful comments were self-evidently prejudicial,
our separate tests for substantial prejudice and prosecutorial
misconduct would collapse into one. Instead, in assessing
substantial prejudice, this court focuses on the closeness of the
case, the centrality of the issues affected, and the steps the trial
court took to mitigate the errors. See United States v.
Fahnbulleh, 752 F.3d 470, 480 (D.C. Cir. 2014). Whatever the
prosecutor’s subjective motivations or beliefs, on balance those
factors show that Khatallah was not prejudiced by her improper
statements.
That the prosecution’s misconduct occurred during
rebuttal does not change the outcome either. Though
defendants are particularly vulnerable during the government’s
rebuttal because they cannot respond to wrongful remarks, see
52
United States v. Holmes, 413 F.3d 770, 776 (8th Cir. 2005), any
prejudicial effect was tempered here by Khatallah’s attorney
correctly predicting in her own closing statement that the
government would try to rile up the jury. In fact, she
specifically warned jurors not to be taken in by the prosecutor’s
“very impassioned … pleas[.]” Trial Tr. 6134 (Nov. 16, 2017,
PM); see also id. (“I don’t get an opportunity to respond [to the
government’s rebuttal]. So I would ask you to think critically
about what you hear and to make sure that what you’re listening
to is evidence as opposed to appeals to your sympathies.”); id.
at 6051 (Khatallah’s counsel accusing the government of
“play[ing] with your emotions[,]” including by “repeatedly
referring to … our [M]ission, our consulate, our
[A]mbassador[.]”). Those arguments anticipatorily threw a
wet blanket on the government’s inflammatory statements. Cf.
Gaither v. United States, 413 F.2d 1061, 1080 (D.C. Cir. 1969)
(reasoning that prejudicial effect of prosecutor’s misstatement
was “largely countered” by the defense counsel’s
contemporaneous objection and his summation “vigorously
contest[ing] the … misstatement”). For that reason, as the
district court found, the prosecutor’s remarks may well have
hurt rather than helped the government’s case. See Khatallah
IV, 313 F. Supp. 3d at 196.
In sum, though the prosecutor’s statements in rebuttal were
unlawful, we hold that the district court did not abuse its
discretion in denying the motion for a mistrial.
VI
The government separately appeals the length of the
sentence that the district court imposed. The government
argues that the 22-year sentence was a substantively
unreasonable variance from the suggested Guidelines sentence
of life imprisonment plus ten years. Because the mandatory
53
minimum sentence for Khatallah’s Section 924(c) offense
alone accounted for ten of those 22 years, the district court
imposed a sentence of just twelve years for all of the non-
Section 924(c) charges combined—charges that independently
supported a Guidelines sentence of life in prison.
The district court attributed part of the variance to avoiding
any reliance on charged conduct for which the jury had
acquitted Khatallah. The government does not dispute that the
district court was permitted to discount acquitted conduct, and
so we take that as given in this case. But in sentencing
Khatallah to just twelve years for the two support-of-terrorism
counts and the property destruction count, the district court did
not—and could not on this record—sufficiently justify its
additional variance so far below the sentencing range that
would have been appropriate even without any consideration
of acquitted conduct. It must be remembered that Khatallah
was convicted of two counts of supporting terrorism and one
count of attacking a United States Mission. Given the gravity
of such an assault on an American diplomatic facility and the
district court’s own recognition of the vital need to deter such
crimes, the district court’s weighing of the Section 3553(a)
factors could not have supported such a stark additional
variance beyond discounting acquitted conduct. For that
reason, we reverse and remand for resentencing.
A
The starting point of any federal sentencing proceeding is
“correctly calculating the applicable Guidelines range[,]”
which serves as the “initial benchmark” in determining an
appropriate sentence. Gall v. United States, 552 U.S. 38, 49
(2007). The Guidelines, though, are not mandatory. See
United States v. Booker, 543 U.S. 220, 258–59 (2005). So the
district court retains the discretion to vary upward or downward
54
from the Guidelines range after considering statutorily
prescribed sentencing factors. See 18 U.S.C. § 3553(a); see
also Booker, 543 U.S. at 264–65.21
Under Section 3553(a), sentencing courts must weigh a
number of considerations, including (i) “the nature and
circumstances of the offense and the history and characteristics
of the defendant;” (ii) “the need for the sentence imposed—(A)
to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense[,] (B)
to afford adequate deterrence to criminal conduct[,] (C) to
protect the public from further crimes of the defendant[,] and
(D) to provide the defendant with needed [rehabilitation]”; and
(iii) “the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been found
guilty of similar conduct[.]” 18 U.S.C. § 3553(a).22
21
A “variance” refers to a sentence outside of the recommended
Guidelines range “based on the applicable factors in 18 U.S.C.
§ 3553(a) taken as a whole.” United States v. Murray, 897 F.3d 298,
308 n.8 (D.C. Cir. 2018). That is different from a “departure[,]”
which refers to a sentence outside of the recommended Guidelines
range based on factors specified in the Sentencing Guidelines
themselves. Id.22
Section 3553(a) states:
The court shall impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
55
A sentencing court “may not presume that the Guidelines
range is reasonable.” Gall, 552 U.S. at 50. Rather, the court
“must make an individualized assessment based on the facts
presented.” Id. And if the court “decides that an outside-
Guidelines sentence is warranted,” it “must give serious
consideration” to “the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree
of the variance.” Id. at 46, 50. After all, while not binding,
the Guidelines are “the product of careful study based on
extensive empirical evidence derived from the review of
thousands of individual sentencing decisions.” Id. at 46.
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for … the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines … issued by the Sentencing Commission …;
(5) any pertinent policy statement … issued by the Sentencing
Commission …[;]
(6) the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
56
Sentencing decisions can be reviewed for both procedural
errors and their “substantive reasonableness.” Gall, 552 U.S.
at 51. In this case, the government does not dispute the
procedural propriety of the district court’s approach. It
challenges only the substantive reasonableness of Khatallah’s
sentence.
We review the substantive reasonableness of a sentence for
abuse of discretion. See Gall, 552 U.S. at 51. In doing so, we
must “take into account the totality of the circumstances,
including the extent of any variance from the Guidelines
range.” Id. A reviewing court “must give due deference to the
district court’s decision that the [Section] 3553(a) factors …
justify the extent of the variance.” Id. At the same time, the
court must ensure that the district court has explained its
conclusion “that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient
justifications.” Id. at 46.
B
1
The district court properly started its sentencing judgment
by calculating Khatallah’s Sentencing Guidelines range.
Because Khatallah’s Section 924(c) firearms conviction
carried a statutorily mandated minimum sentence of ten years
(and a maximum of life), the Guidelines determination focused
on the remaining counts of conviction—that is, the convictions
for conspiring to provide material support to terrorists, 18
U.S.C. § 2339A, providing such support, id., and maliciously
destroying or injuring property within the special maritime and
territorial jurisdiction of the United States, 18 U.S.C. § 1363.
In computing the Guidelines range for those three offenses,
the district court recognized that its analysis was not limited to
57
facts that the jury found, but could include any “relevant
conduct.” U.S.S.G. § 1B1.3.23 While the jury, applying the
beyond-a-reasonable-doubt standard, made a specific finding
that Khatallah’s actions did not result in death, the district court
found by a preponderance of the evidence that Khatallah’s
relevant conduct had led to death. See Khatallah V, 314 F.
Supp. at 190. The court reasoned that it was “more likely than
not that [Khatallah] agreed with several other participants to
launch an armed attack on the Mission, and the attack
foreseeably resulted in deaths that furthered the ends of the
conspiracy.” Id. For that reason, the district court determined
that Khatallah’s base offense level for the two terrorism
support counts, together with the property count, was 38,
applying the Guideline for second-degree murder, U.S.S.G.
§ 2A1.2(a). The district court also found that Khatallah’s
initial criminal history category was Category I.
The court next applied sentencing enhancements for
terrorism and Khatallah’s leadership role. The Sentencing
Guidelines call for a twelve-level increase in offense level and
an automatic bump to criminal history Category VI if “the
offense is a felony that involved, or was intended to promote, a
23
“Relevant conduct” is broadly defined in the Sentencing
Guidelines to include “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant,” and in the case of “jointly undertaken
criminal activity[,]” also “all acts and omissions of others that
were—(i) within the scope of the jointly undertaken criminal
activity, (ii) in furtherance of that criminal activity, and (iii)
reasonably foreseeable in connection with that criminal activity[.]”
U.S.S.G. § 1B1.3(a)(1). Relevant conduct also sweeps in “all harm
that resulted from” or “was the object of” those acts and omissions.
Id. § 1B1.3(a)(3).
58
federal crime of terrorism[,]” U.S.S.G. § 3A1.4(a), (b), defined
as an offense falling within an enumerated list that
is “calculated to influence or affect the conduct of government
by intimidation or coercion, or to retaliate against government
conduct[,]” 18 U.S.C. § 2332b(g)(5). The Guidelines’
leadership enhancement separately calls for a four-level
increase in the offense level if “the defendant was an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive[.]” U.S.S.G.
§ 3B1.1(a).
In applying the terrorism enhancement, the district court
found that Khatallah’s conduct was “more likely than not
‘intended to promote’ a crime calculated to retaliate against the
U.S. government or to shape its policy.” Khatallah V, 314 F.
Supp. 3d at 199 (quoting U.S.S.G. § 3A1.4). The court pointed
to both “the very choice of target for the attack[,]” id. at 198,
and testimony showing that Khatallah had “expressed
frustration about the United States spying on Libyans and
Muslims in Benghazi[,]” and had “described the United States
of America as the cause of all the world’s problems[,]” id. at
199 (internal quotation marks and citations omitted).
As for the leadership enhancement, the district court found
that Khatallah organized or led the attack on the Mission. The
court relied on evidence showing that Khatallah procured
weapons before the attack and instructed others during the
attack, as well as testimony suggesting that he “sat atop the
structure of” the militant group UBJ. Khatallah V, 314 F.
Supp. 3d at 200. The court also pointed to evidence introduced
at the sentencing stage from a Libyan student who told the
government that he had taken a picture of several men,
including Khatallah, in a truck outside the Mission on the night
of the attack, after which Khatallah instructed other men to
detain him.
59
Based on those findings, the district court concluded that
the Guidelines sentence for the two support-of-terrorism
convictions, along with the property-destruction conviction,
was life imprisonment. The Section 924(c) count carried a
statutory minimum of ten years to run consecutively to any
other sentence, so Khatallah’s advisory Guidelines sentence for
all counts of conviction was life in prison plus ten years. The
government agrees with the district court’s calculation of that
Sentencing Guidelines range.
2
In its sentencing memorandum, the government asked for
the maximum sentence permissible under the law, which was
life plus fifty years—life in prison being the maximum
authorized under Section 924(c) and fifty years being the
combined statutory maximum sentences for the other three
offenses. Khatallah urged the court to impose a sentence
between 51 and 63 months for the property damage and support
of terrorism counts, and only the ten-year mandatory minimum
on the Section 924(c) count.
At the sentencing hearing, the court affirmed that it had
considered all of the Section 3553(a) factors and proceeded “to
highlight” what it considered to be “a few of the most relevant
factors[.]” Sentencing Tr. 52 (June 27, 2018). The “most
important” factor for the district court was the “jury’s
acquittals[,]” without which it would have been “an easy
sentencing[.]” Id. at 56–57. The court recounted that the jury
had returned “[f]our convictions[,] all related to the destruction
of a building at the Mission[,] and 14 acquittals and a specific
finding that [Khatallah’s] conduct did not result in anyone’s
death.” Id. at 58. The court noted that it had considered
acquitted conduct in calculating the Guidelines range. See id.
at 52–53. But the court stressed that the “[twelve] jurors and
60
the three alternates … who sacrificed seven weeks” to hear the
evidence and arguments and thoroughly deliberate each charge
would likely be “shocked to learn that” Khatallah could be
sentenced on the basis of conduct that they determined the
government had not proven beyond a reasonable doubt. Id. at
59. In the district court’s view, increasing Khatallah’s sentence
based on evidence the jury rejected would undermine “the
fundamental purpose of the Sixth Amendment jury trial right,
which is to ensure that before the government deprives
someone of liberty it [has] persuade[d] a jury that it has proven
each element of the crime charged beyond a reasonable doubt.”
Id.
Parsing the jury’s verdict, the court concluded that it “could
rely solely on facts that the jury did not necessarily reject to
apply both the leadership and the terrorism enhancement …
[which] would result in a life sentence.” Sentencing Tr. 60
(June 27, 2018). “But stepping back a minute,” the court stated
that it was “clear enough … that the jury explicitly found that
[Khatallah’s] conduct did not result in death, that it rejected
many of the facts presented that tied [Khatallah] to direct
participation in the first wave of the attacks and to the attack on
the Annex, and that what it convicted him of was essentially a
property crime.” Id. “[I]n light of those findings,” the district
court came, “somewhat reluctantly, to the conclusion that a life
sentence overestimate[d] [Khatallah’s] criminal conduct and
culpability as it was determined by the jury.” Id. at 60–61.
The court then varied downward from the Guidelines range
of life imprisonment to impose a sentence of just twelve years
for each of the three counts of property damage and support of
terrorism, to run concurrently, plus the mandatory minimum of
ten years on the Section 924(c) count, to run consecutively as
required by law. That left Khatallah with a total sentence of 22
years.
61
C
This court has long left open the question of whether
district courts are permitted to vary downward in order to avoid
sentencing defendants on the basis of acquitted conduct. See
United States v. Settles, 530 F.3d 920, 923–24 (D.C. Cir. 2008);
see also United States v. Bell, 808 F.3d 926, 928 (D.C. Cir.
2015) (Kavanaugh, J., concurring in the denial of rehearing en
banc) (“[E]ven in the absence of a change of course by the
Supreme Court, … federal district judges have power in
individual cases to disclaim reliance on acquitted …
conduct.”). We need not decide that question today because
the government has conceded the point.
The problem is that the district court’s sentence went far
lower than discounting acquitted conduct alone could support
when it imposed a total sentence of just twelve years for the
terrorism-support and property-destruction convictions. Given
the gap between the acquitted-conduct reduction and the
twelve-year sentence imposed, the district court needed to
provide reasons justifying the further steep reduction in
Khatallah’s sentence. Because the district court did not do
so—and could not have done so on this record—we reverse the
sentence and remand for a new sentencing.
1
According to the government, after setting aside acquitted
conduct, Khatallah’s Guidelines range would have been 30
years to life. See S.A. 104; Sentencing Tr. 24 (June 27, 2018);
Gov’t Opening Br. 83 & n.7. It arrived at that range by
decreasing the base offense level from 38 to 24 to account for
the jury’s acquittals on all charges involving death, while also
retaining the terrorism and leadership enhancements that the
district court acknowledged could be applied without reference
to acquitted conduct.
62
Khatallah disagrees, arguing that the Guidelines range
without acquitted conduct would also exclude the terrorism and
leadership enhancements. He reasons that, “while the district
court concluded that it ‘could rely solely on facts that the jury
did not necessarily reject to apply both the leadership and the
terrorism enhancement,’ … [it] may have concluded that the
jury actually rejected the facts necessary for those
enhancements.” Khatallah Reply Br. 54 (emphases in original)
(citation omitted).
But Khatallah was not “acquitted” for conduct unless the
jury necessarily determined that the facts underlying a charge
or enhancement were not proved beyond a reasonable doubt.
On this record, we agree with the district court that “the jury
did not necessarily reject” the facts underlying the terrorism
and leadership enhancements. Sentencing Tr. 60 (June 27,
2018). That is because three of the crimes of which the jury
did convict Khatallah—conspiring to provide material support
to terrorists, providing such support, and destruction of
government property—are themselves qualifying offenses in
the definition of “[f]ederal crime of terrorism.” 18 U.S.C.
§ 2332b(g)(5)(B)(i). More specifically, the conduct underlying
those offenses could support a finding that Khatallah intended
“to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against government
conduct.” Id. § 2332b(g)(5)(A). So too the jury’s acquittal of
Khatallah for the deaths that occurred in no way precluded the
jury from simultaneously concluding that Khatallah was “an
organizer or leader” of some aspect of the attack. U.S.S.G.
§ 3B1.1(a). After all, much of the evidence that supported the
jury’s convictions pointed to Khatallah’s role as an organizer
of at least part of the attack on the Mission.
In short, the jury did not acquit Khatallah of the conduct
that would support application of the terrorism and leadership
63
enhancements. Instead, its verdicts are consistent with a
finding that Khatallah undertook conduct that would support
those enhancements. As such, the district court did not need to
exclude those enhancements to calculate what the Guidelines
range would be in the absence of acquitted conduct. Because
Khatallah does not otherwise dispute the government’s
calculation, we take as given that the Guidelines range would
have been 30 years to life even without relying on acquitted
conduct.
Khatallah asserts that considering the Guidelines range that
would have applied without acquitted conduct places “undue
emphasis” on the Guidelines. Khatallah Reply Br. 55. That is
incorrect. While the Guidelines are no longer mandatory, they
“remain the starting point and the initial benchmark for
sentencing, … [and] thus continue to guide district courts in
exercising their discretion by serving as the framework for
sentencing[.]” Beckles v. United States, 137 S. Ct. 886, 894
(2017) (internal quotation marks and citation omitted). As a
result, the sentence that the Guidelines would deem appropriate
after subtracting out the conduct for which Khatallah was
acquitted remains a relevant consideration in assessing whether
the district court’s variance was justified.
2
At bottom, the district court’s rationale for varying
downward to just a twelve-year sentence placed more weight
on the acquitted-conduct rationale than it could bear.
We note at the outset that neither this court nor the
government takes issue with the procedural soundness of the
district court’s sentencing statement. The district court
properly began with the Guidelines sentence, and then
carefully and comprehensively considered the key sentencing
factors set out in Section 3553(a), including the nature and
64
seriousness of Khatallah’s conduct, Khatallah’s particular
characteristics and history, and the need for general and
specific deterrence.
The problem, instead, is that after analyzing the Section
3553(a) factors, the district court stated that “this would be an
easy sentencing but for the final factor, … the jury’s
acquittals[.]” Sentencing Tr. 56–57 (June 27, 2018). This
statement strongly implies that the other Section 3553(a)
factors were a wash, and but for the jury’s acquittals, the district
court would have sentenced Khatallah consistent with the
Guidelines’ recommendation of a life sentence. To that same
point, immediately after analyzing the effect of the jury’s
acquittals, the district court explained that, “in light of those
findings, I have come, somewhat reluctantly, to the conclusion
that a life sentence overestimates the defendant’s criminal
conduct and culpability as it was determined by the jury.” Id.at 60–61. That leaves unexplained the basis on which the court
varied downward from a 30-year sentence—the bottom of the
Guidelines range once acquitted conduct is set aside—to just
twelve years for the three support-of-terrorism and property
counts. An unexplained variance is a substantively
unreasonable variance.
But even if the district court also placed weight on Section
3553(a) factors besides the acquittals in choosing a twelve-year
sentence, those other factors are inadequate to support such a
steep additional variance. Every factor discussed by the district
court other than acquitted conduct either supported imposition
of a sentence within the Guidelines range or was a mixed bag.
First, the district court’s treatment of the nature and the
seriousness of the defendant’s conduct cannot support a
sentence so much more lenient than the applicable Guidelines
range even without considering acquitted conduct. The court
65
remarked that it “did not believe that [Khatallah was] an
innocent bystander on the night of September 11, 2012[,]” or
that he “learned for the first time that there was a U.S. facility
in Benghazi that night.” Sentencing Tr. 53 (June 27, 2018).
The court, in fact, found “at the very least” that Khatallah (i)
“drove some of [his] men to the Mission” the night of the
attack, (ii) was “in telephone contact with several of them
before, during, and after” the attack, (iii) “appeared on camera,
armed, entering a Mission building while it was being
ransacked,” and (iv) “drove several of [his men] away to the
camp of another extremist group after the attack.” Id. at 54.
On that basis, the district court concluded that Khatallah’s
conduct was “gravely serious” because, “even if [he] did [not]
pour the gasoline or light the match, … the evidence showed
that [he was] aware of the attack, and that once those gates were
breached the likelihood of someone dying was extremely
high.” Id. at 54–55. So to characterize a terrorist attack on a
diplomatic outpost as “essentially a property crime” warranting
a significantly below-Guidelines sentence both was
inconsistent with the district court’s own findings as to the
seriousness of Khatallah’s actions and failed to account for the
two support-of-terrorism convictions. Id. at 60. Given the
gravity of Khatallah’s terrorism-support and Mission-
destruction convictions, the court’s twelve-year sentence for
those counts was “shockingly low and unsupportable as a
matter of law” on this record. United States v. Mumuni, 946
F.3d 97, 108 (2d Cir. 2019).
Second, the district court’s discussion of Khatallah’s
individual characteristics and history offered scant support for
an additional 60% downward variance from the Guidelines
range. On one hand, the judge stated that he “appreciate[d] the
attention and the respect that [Khatallah had] given to these
proceedings,” and opined that, based on the video testimonials
submitted to the court, Khatallah “seem[ed] to be a hard-
66
working and resourceful guy” with “a supportive family.”
Sentencing Tr. 55–56 (June 27, 2018). Yet, even assuming that
paying attention and being respectful in court are relevant
Section 3553(a) factors, the district court also told Khatallah
that “you strike me as a creature of [a violent] culture; perhaps
not [a] stone-cold premediated terrorist …, but someone who
might readily resort to or order violence in furtherance of
whatever ideological or political goals you might have.” Id. at
55; see id. (district court finding that Khatallah “spent [his]
entire adult life in a culture of violence, oppression by the
Gaddafi regime, imprisonment in brutal conditions, armed
conflict during the revolution and … civil war after the
revolution”). Those crosscutting statements regarding
Khatallah’s characteristics and history could not justify a lower
sentence, let alone the extensive additional variance taken here.
Third, the district court was similarly equivocal in its
analysis of the need for general and specific deterrence. The
court began by declaring that “anyone intent on doing … harm”
to United States persons stationed abroad “must know that
there will be consequences[,]” and “that they will be
apprehended, prosecuted, and given stiff sentences, if they are
convicted.” Sentencing Tr. 56 (June 27, 2018) (emphasis
added). At the same time, the court stated that it had “no reason
to doubt” that offenders like Khatallah “are less and less likely
to reoffend as they get older[.]” Id. And it “doubt[ed]” that
Khatallah “would have the means or the opportunity to harm
America again[.]” Id. But it added that “certainly there’s no
guarantee of that.” Id.Those findings cannot support the variance that occurred
here—or any downward variance at all. Quite the opposite, the
district court’s own analysis of the deterrence interests at stake
acknowledged that they support a stiffer, not a lower, sentence.
As the court noted, those contemplating attacks on the United
67
States, its official properties, and (most importantly) its
personnel must know they will face severe consequences if
apprehended and convicted. Their leaders even more so. The
district court’s variance down to a twelve-year sentence did not
match its own deterrence concerns. Nor could such a variance
be warranted on this record given the gravity of Khatallah’s
convictions.
At bottom, on this record, the district court’s discussion of
the Section 3553(a) factors was insufficient to justify a
sentence substantially below the bottom of the Guidelines
range that would have applied even in the absence of acquitted
conduct. As the reviewing court, it is our responsibility to
ensure that “an unusually lenient” sentence is supported “with
sufficient justifications.” Gall, 552 U.S. at 46. And it is
“uncontroversial that a major departure should be supported by
a more significant justification than a minor one.” Id. at 50. A
decrease from a 30-years-to-life Guidelines range to just twelve
years is unquestionably a “major departure.” Id. Even
assuming that the district court’s consideration of the jury’s
acquittals justified a departure down to thirty years, a further
variance to less than half of that is itself significant and requires
independent justification. Yet the district court did not offer a
discussion of sentencing factors besides the jury’s acquittals
that was “sufficiently compelling to support the degree of the
variance.” Id. Nor could it have, given the facts of this case
and the gravity of Khatallah’s terrorism offenses and leadership
role in a violent attack on the Mission.
D
In sum, while the district court’s discretion to vary
downward to discount acquitted conduct is undisputed in this
case, the district court abused its discretion by varying
downward significantly further and imposing a sentence both
68
lower than the minimum that would be appropriate in light of
the jury’s acquittals and far lower than could be justified on this
record by reference to the Section 3553(a) factors. For that
reason, on the government’s cross appeal, we reverse and
remand for resentencing.
VII
The judgment of the district court is affirmed in part and
reversed in part. The case is remanded for resentencing.
So ordered.
MILLETT, Circuit Judge, concurring: While I join the
court’s opinion in full, I write separately with respect to the
district court’s sentencing decision to reconfirm what then-
Judge Kavanaugh and others have said: District courts are
permitted, in the exercise of their sentencing discretion, to do
what the district court did here—to vary downward to ensure
that a sentence is not predicated on acquitted conduct. See
United States v. Bell, 808 F.3d 926, 927–928 (D.C. Cir. 2015)
(Kavanaugh, J., concurring in the denial of rehearing en banc).
I have written separately before to explain why sentencing a
defendant to a longer period of incarceration based on conduct
of which he was acquitted by a jury is a “grave constitutional
wrong.” United States v. Brown, 892 F.3d 385, 409 (D.C. Cir.
2018) (Millett, J., concurring); see also Bell, 808 F.3d at 928–
932 (Millett, J., concurring in the denial of rehearing en banc);
United States v. Bagcho, 923 F.3d 1131, 1141 (D.C. Cir. 2019)
(Millett, J., concurring). I continue to adhere to that view.
But the question before us today is much more modest:
May district courts choose not to consider acquitted conduct if
they determine that doing so would be inconsistent with their
responsibility to impose a just and reasonable sentence under
18 U.S.C. § 3553(a)? I agree wholeheartedly with Judge
Kavanaugh that district courts have that authority.
To be sure, for now, Supreme Court and circuit precedent
“do[] not prevent the sentencing court from considering
conduct underlying [an] acquitted charge[.]” United States v.
Watts, 519 U.S. 148, 157 (1997) (per curiam) (emphasis
added); United States v. Settles, 530 F.3d 920, 923 (D.C. Cir.
2008) (Kavanaugh, J.). But nothing in binding precedent has
ever required district courts to factor in such conduct when
determining an appropriate sentence. See Settles, 530 F.3d at923–924; cf. United States v. White, 551 F.3d 381, 386 (6th Cir.
2008) (en banc) (“To say that district court judges may enhance
a defendant’s sentence based on acquitted conduct * * * is not
to say that they must do so.”).
2
To the contrary, we have long left open the possibility that
district courts may “discount acquitted conduct in particular
cases—that is, to vary downward from the advisory Guidelines
range when the district judges do not find the use of acquitted
conduct appropriate.” Settles, 530 F.3d at 924; see Bell, 808
F.3d at 928 (Kavanaugh, J., concurring in the denial of
rehearing en banc) (“[F]ederal district judges have power in
individual cases to disclaim reliance on acquitted * * *
conduct.”). And the government, for its part, agrees that “the
district court was permitted to vary downward to avoid
sentencing Khatallah based on acquitted conduct[.]” Gov’t
Reply Br. 4; see also Gov’t Reply Br. 20; Oral Arg. Tr. 57:8–
10 (“[Y]ou don’t dispute the District Court’s authority to vary
down to avoid taking account of acquitted conduct.” “That’s
correct.”).
So there is no barrier to a district court varying downward
in a manner that discounts acquitted conduct if it determines
that doing so appropriately “reflect[s] the seriousness” or
“nature and circumstances of the offense[,]” “provide[s] just
punishment for the offense[,]” “promote[s] respect for the
law,” or otherwise gives effect to the Section 3553(a) factors.
18 U.S.C. § 3553(a)(1), (a)(2)(A).
Here, the district court took heed of Judge Kavanaugh’s
suggestion in Bell and varied downward “to avoid reliance on
acquitted conduct” in sentencing Khatallah. Sentencing Tr.
59:18–60:3 (June 27, 2018). And the court did so in a
thoughtful and carefully explained manner. See id. at 60:4–
61:1. Recall that the base offense level used in the Sentencing
Guidelines calculations was that for second-degree murder
because, in calculating the Guidelines range, the district court
found by a preponderance of the evidence that “death resulted,
or the offense was intended to cause death or serious bodily
injury[.]” U.S.S.G. § 2K1.4(c)(1). The jury, however,
3
acquitted Khatallah of all charges involving death and
specifically found Khatallah not guilty of causing death
through his material support of terrorism. To “respect * * * the
jury’s overall verdict and underlying findings[,]” Sentencing
Tr. 62:6–7 (June 27, 2018), the district court varied downward
to avoid sentencing Khatallah as if the jury had found that his
conduct resulted in death. The district court explained that, in
its view, “significantly increas[ing] [Khatallah’s] sentence
based on evidence that [the jury] rejected” would undermine
“the importance and the sanctity of jury service, and * * * the
fundamental purpose of the Sixth Amendment jury trial
right[.]” Id. at 59:8–14. After carefully analyzing the jury’s
split verdict and giving due weight to its explicit finding that
Khatallah was not guilty of conduct resulting in death, the
district court came “to the conclusion that a life sentence
[would] overestimate[] [Khatallah’s] criminal conduct and
culpability as it was determined by the jury.” Id. at 60:23–61:1.
Of course, I am of the view that district courts not only can
vary downward to sidestep reliance on acquitted conduct, but
that they should do so based on bedrock legal principles.
“[A]llowing a judge to dramatically increase a defendant’s
sentence based on jury-acquitted conduct is at war with the
fundamental purpose of the Sixth Amendment’s jury-trial
guarantee[,]” and when a deprivation of liberty is made longer
based on facts the jury determined were not proved beyond a
reasonable doubt, then that great “liberty-protecting bulwark
becomes little more than a speed bump at sentencing.” Bell,
808 F.3d at 929 (Millett, J., concurring in the denial of
rehearing en banc).
I am not alone in that view. “Many judges and
commentators have similarly argued that using acquitted
conduct to increase a defendant’s sentence undermines respect
for the law and the jury system.” Settles, 530 F.3d at 924.
4
Judge Kavanaugh likewise explained that “[a]llowing judges to
rely on acquitted * * * conduct to impose higher sentences than
they otherwise would impose seems a dubious infringement of
the rights to due process and to a jury trial.” Bell, 808 F.3d at
928 (Kavanaugh, J., concurring in the denial of rehearing en
banc); see id. at 927 (remarking that the practice by which a
defendant can be acquitted of a crime by a jury of his peers,
only to then be sentenced as if he had committed that very
crime, is a stubborn “oddit[y] of sentencing law”); see also
Watts, 519 U.S. at 164 (Stevens, J., dissenting) (describing
sentencing based on acquitted conduct as a “perverse result”);
United States v. Baylor, 97 F.3d 542, 550 (D.C. Cir. 1996)
(Wald, J., concurring specially) (“[T]he use of acquitted
conduct * * * in computing an offender’s sentence leaves such
a jagged scar on our constitutional complexion that periodically
its presence must be highlighted and reevaluated in the hopes
that someone will eventually pay attention[.]”); United States
v. Mateo-Medina, 845 F.3d 546, 554 (3d Cir. 2017)
(“[C]alculating a person’s sentence based on crimes for which
he or she was not convicted undoubtedly undermines the
fairness, integrity, and public reputation of judicial
proceedings.”); United States v. Alejandro-Montañez, 778 F.3d
352, 362–363 (1st Cir. 2015) (Torruella, J., concurring) (“[I]t
is inappropriate and constitutionally suspect to enhance a
defendant’s sentence based on conduct that the defendant was
* * * acquitted of.”); United States v. Canania, 532 F.3d 764,
776 (8th Cir. 2008) (Bright, J., concurring) (“Permitting a
judge to impose a sentence that reflects conduct the jury
expressly disavowed through a finding of ‘not guilty’ amounts
to more than mere second-guessing of the jury—it entirely
trivializes its principal fact-finding function.”); White, 551
F.3d at 392 (Merritt, J., dissenting) (“[T]he use of acquitted
conduct at sentencing defies the Constitution, our common law
heritage, the Sentencing Reform Act, and common sense.”);
United States v. Faust, 456 F.3d 1342, 1353 (11th Cir. 2006)
5
(Barkett, J., specially concurring) (decrying the “pernicious
effect of sentencing on the basis of acquitted conduct”); cf.
Jones v. United States, 574 U.S. 948, 949 (2014) (Scalia, J.,
joined by Thomas & Ginsburg, JJ., dissenting from denial of
certiorari) (“[A]ny fact necessary to prevent a sentence from
being substantively unreasonable—thereby exposing the
defendant to the longer sentence—is an element that must be
either admitted by the defendant or found by the jury. It may
not be found by a judge.”); United States v. Sabillon-Umana,
772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.) (“We admit
[our premise] * * * assumes that a district judge may either
decrease or increase a defendant’s sentence (within the
statutorily authorized range) based on facts the judge finds
without the aid of a jury or the defendant’s consent. It is far
from certain whether the Constitution allows at least the second
half of that equation.”).
While it falls upon the Supreme Court to hold that
sentencing defendants based on conduct for which they have
been acquitted contravenes the Constitution and to firmly put
an end to the practice, it is well within our bailiwick to reaffirm
that district courts may vary downward to avoid reliance on
acquitted conduct in individual cases. Granted, trial judges
may still be obligated to factor in acquitted conduct when
calculating the Guidelines range to the extent it constitutes
“relevant conduct[,]” U.S.S.G. § 1B1.3. See Bell, 808 F.3d at
928 (Kavanaugh, J., concurring in the denial of rehearing en
banc). But since those Guidelines are only advisory, there
should be no question that “district judges may then vary the
sentence downward to avoid basing any part of the ultimate
sentence on acquitted * * * conduct[,]” id., and so to ensure a
sentence is fair and appropriate as required by 18 U.S.C.
§ 3553(a).
6
In sum, the portion of the district court’s downward
variance designed to avoid reliance on acquitted conduct was a
sound and commendable exercise of discretion. And it set an
example that I hope other district court judges will follow to
retain and “promote respect for the law,” 18 U.S.C.
§ 3553(a)(2)(A), and to maintain the role of the jury trial as one
of the greatest “guard[s] against a spirit of oppression and
tyranny on the part of rulers” ever devised, United States v.
Gaudin, 515 U.S. 506, 510–511 (1995) (citation omitted).