United States v. Hausa (258 F. Supp. 3d 265, 2017)

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Before the Court are two motions by defendant — one motion to dismiss for lack of jurisdiction, or in the alternative for acquittal, as to Count Two of the Indictment and one motion for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29(a), as to Counts One (or to dismiss the Indictment as to this Count, in the alternative), Three, Four, and Six. For the reasons that follow, defendant’s motions are denied.

BACKGROUND

As set forth in the Indictment and as the Government proved at trial, defendant Ibrahim Suleiman Adnan Adam Harun was an al Qaeda operative. He traveled to Afghanistan and joined al Qaeda hi the weeks before September 11,2001. Thereafter, he received training at two al Qaeda training camps, participated in attacks on U.S. and Coalition troops in Afghanistan, one of which left two American soldiers dead and resulted in serious injury to others, and conspired to attack U.S. facilities in Africa as part of an external operations assignment.

Harun confessed to these acts during a number of interviews, the last several of which were ■ Mirandized interviews with representatives from the U.S. Attorney’s Office for the Eastern District of New York. Specifically, during the Mirandized interviews, Harun recounted his path to jihad, stating that approximately two weeks prior to September 11, 2001, he had traveled to Afghanistan for the purpose of joining a jihadist fighting group so that he could fight in Chechnya or elsewhere. He described attending two training camps and crossing the border from Pakistan to attack American and Coalition forces stationed in Afghanistan.

Harun specifically described attacks against the American forces at Forward Operating Base (“FOB”) Shkin in Afghanistan, in either 2002 or 2003, acts which form the basis of some of the Counts charged in the Indictment. Harun stated that he believed that one or more Americans were wounded during-one such .attack and that, he, either saw or. heard a vehicle drive away with a wounded soldier. He recounted throwing a grenade that exploded directly between two soldiers and stated that he was certain that both men were injured or killed by the grenade.

Harun recounted conversations with certain al Qaeda leaders, including one with the head of al Qaeda’s external operations, where Harun expressed his desire to engage in attacks against Americans outside of Afghanistan. Harun was thereafter assigned to carry out such an attack and traveled to Nigeria, where he sought out a suitable target for a terrorist attack.- He said that he wanted to focus on targeting offices and buildings belonging to the United States, including the U.S. Embassy in Abuja and other American and Western diplomatic facilities. He also stated that the inspiration for such an attack was the U.S. embassy bombings in Nairobi, Kenya, and Dares Salaam, Tanzania.

During his time in Nigeria, Harun was exchanging letters with al Qaeda leader Hamza Rabia through a courier named Mohamed Ashafa. Ashafa traveled back and forth between Hamza Rabia in Pakistan and Harun in Nigeria, but in 2004, Ashafa was caught by the Pakistanis as he attempted to leave the country. After Ashr afa’s arrest, Hamza Rabia contacted Ha-run by telephone and told him to leave Nigeria immediately. Harun fled to Niger, but he traveled back and forth to Nigeria at times to communicate with Hamza Ra-bia by email.

After his plans were disrupted in Nigeria, Harun ultimately made his way through Niger to Libya with the ultimate goal of reaching Europe to carry out terrorist attacks against Western targets there. However, in January 2005, Harun was captured in Libya and held in Libyan custody until June 2011, near the time of the fall of former Libyan leader Muammar Qaddafl’s regime, at which time he was released onto a refugee' ship bound for Italy.

The ship onto which Harun was placed, the Excelsior, was an Italian ship bound for Taranto, Italy. While on board, Harun declared that he was a member of al Qae-da, assaulted Italian police officers, was arrested, and thereafter charged in Italian criminal court. As part of the Italian criminal process, Harun was interviewed on several occasions in Italy, including (i) on June 24, 2011, by Italian police officers onboard the Excelsior; (ii) on June 25, 2011, by Italian officials in the presence of a defense attorney in Agrigento, Italy; (iii) on June 27,. 2011, in an Agrigento court before a preliminary investigative judge and with a defense attorney; (iv) on July 25,2011, by Italian law enforcement in the presence of two defense attorneys; and (v) on August 24, 2011, by Italian officials in the presence of a defense attorney. Thereafter, in September 2011, pursuant to a Mutual Legal Assistance Treaty request to the Italian government, representatives of the U.S. Government traveled to Agrigen-to to interview Harun and the Italian law enforcement officers involved in the case. These latter interviews of Harun, which are the Mirandized interviews during which Harun recounted his acts, took place on September 14,15, and 16,2011.

Harun was later extradited to the United States and indicted in 2012. The Government charged Harun with conspiring to murder U.S. Nationals, in violation of 18 U.S.C. §§ 1111(a) and 2332(b)(2) (Count One); conspiring to attack a U.S. government facility, in violation of 18 1 U.S.C. § 2332f(a) (Count Two); conspiring to pro-yide material support to al Qaeda, in violation of . 18 U.S.C. § 2339B (Count Three); providing and attempting to provide material .support to al Qaeda, in violation of 18 U.S.C. § 2339B (Count Four); using firearms in furtherance of one or more crimes of violence, , in violation of 18 U.S.C. § 924(c) (Count Five); and using and carrying an explosive to commit one or more felonies, in violation of 18 U.S.C. § 844(h) (Count Six).

This Court presided over his trial in March 2017, during which time the Government presented evidence of the foregoing events, including the taped audio from the September 14, 15, and 16, 2011 Miran-dized interviews. But the Government did not rest on the taped confessions .alone; rather, the Government presented detailed testimonial, forensic, and documentary evidence that corroborated many of defendant’s own statements during .the Miran-dized interviews. This additional evidence included the testimony of the Italian coun-terterrorism officer for the Guardia di Fi-nanza who arrested defendant aboard the Excelsior and to whom Harun declared he was an al Qaeda fighter. In addition, the Government presented testimony from the Deputy Commissioner of the Italian State Police and a then-lieutenant in .the Carabi-nieri Corps who were also aboard the- Excelsior, who also interviewed Harun.and whom Harun assaulted.

The Government also presented testimony from the translator who interpreted Hausa, Harun’s native language, for the Italians, as well as the Special Agent with the FBI’s Joint Terrorism Task Force, who was responsible for the investigation into Harun. Through the FBI Special Agent, a host of documentary evidence was authenticated and admitted, including materials related to captured courier Mohamed Ashafa. With respect to the charged crimes arising from Harun’s attack on FOB Shkin, the Government presented compelling testimony from .several U.S. Army soldiers who defended against the attack and who either suffered their own injuries as a result or witnessed the deaths and injuries of several members of their Army company. This sometimes emotional and moving testimony offered details that, in numerous respects, precisely corroborated Harun’s description of the attack in his own Mirandized statements.

The Government also corroborated Ha-run’s statements through the testimony of several individuals who took part in certain raids on al Qaeda safehouses or who were involved in the evidence collection and analysis arising from those raids. The evidence presented through these individuals corroborated Harun’s association with al Qaeda. The Government further presented documentary evidence, including communications between Harun and Hamza Rabia, done through aliases, and material corroborating the location and training content taught at the,two, training, camps Harun attended. .

' At'the close of the evidence, the Government gave its closing argument and defendant declined to present one. The jury returned a verdict'of guilty on Counts One, Two, Three, Four, and Six.

DISCUSSION

I. Motion to Dismiss Count One, or Alternatively for Acquittal, on Count One

Defendant moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b)(2), to dismiss Count One or, in the alternative, to acquit him of the charge because, as: he contends, the Government failed to present proof beyond a reasonable'doubt that an objective of the conspiracy alleged' under 18 U.S.C. § 2332(b)(2) included the murder Of U.S.' nationals “within the special maritime and territorial jurisdiction of the U;S.” The Court denies defendant’s motion as to Count One for several reasons.

First, the Court rejects defendant’s argument that § 2332(b)(2) has no extraterritorial application, In support of his argument, defendant parses the extant case law to argue, that, while courts, including the Second , Circuit in United States v. Al Kassar, 660 F.3d 108, 117-18 (2d Cir. 2011), have found. § 2332(b) to apply extraterritorially, the same cannot be said of § 2332(b)(2).

Section 2332(b) provides as follows:

Whoever .outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States shall (1) in the case of an attempt to commit a killing that is a murder as defined in this chapter, be fined under this title or imprisoned not more than 20 years, or both; and (2) in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111(a) of this title, if one- or more ■ of such persons do any overt act to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years or for life, or both so fined and imprisoned.

18 U.S.C. § 2332(b). In the first .instance, defendant argues that the Court should distinguish § 2332(b)(1), which applies ex-traterritorially, from § 2332(b)(2), which he argues does not. There is no basis for this reading.

The linchpin of defendant’s argument is his contention that the reference to § 1111(a) limits the jurisdiction, for a conspiracy charged under § 2332(b)(2). This is incorrect. Section 1111(a), as referenced in § 2332(b)(2), defines murder as “the unlawful killing of a human being with malice aforethought.” Section 1111(a) itself imposes no jurisdictional limitation whatsoever. Thus, § 2332(b)(2) captures the conduct that defendant was charged with and convicted of at trial. He was “outside the United States” and engaged “in a conspiracy to kill a national of the United States” that is a “murder as defined in section 1111(a).” See also Al Kassar, 660 F.3d at 117-18 (holding that 18 U.S.C. § 2332(b) contains “explicit provisions applying them extraterritorially”).

Defendant attacks this fairly unremarkable reading by arguing that § 1111(b) “restricts the application of § 1111 to murders occurring ‘[wjithin the special maritime and territorial jurisdiction of the United States.’ ” There is no basis for this argument either.' First, the complete text of § 1111(b) effects no such jurisdictional limitation; rather, it sets outs the penalties if a murder is committed vrithin the special maritime and territorial jurisdiction of the United States. In particular, § 1111(b) states:

Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

18 U.S.C. ■ § 1111(b). Nothing about § 1111(b) suggests that it limits § 1111(a).

What is most fatal to defendant’s argument is the baseline that § 1111 is the “generic federal murder statute.” United States v. Bruno, 383 F.3d 65, 92 n.23 (2d Cir. 2004), as amended (Oct. 6, 2016); see also United States v. Antelope, 430 U.S. 641, 643 n.3, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977) (“Title 18 U.S.C. § 1111 is the federal murder statute.”). The general applicability of § 1111 to murder is made clear on review of any sample of the cases that charge § 1111(a) as a substantive offense. See, e.g., United States v. Thomas, 34 F.3d 44, 48 (2d Cir! 1994); United States v. Gonzalez, 922 F.2d 1044, 1048 (2d Cir. 1991); United States v. Fuff, 211 F.2d 171, 173 (2d Cir. 1954); United States v. Ashburn, No. 11-CR-303, 2015 WL 5098607, at *1 (E.D.N.Y. Aug. 31, 2015).

Stated simply, § 1111(b) effects no jurisdictional limitation whatsoever on § 1111(a). Moreover, -numerous statutes reference the definition of murder in § 1111 when criminalizing conduct. See, e.g., 18 U.S.C. § 36 (murder during the commission of a major drug offense); 18 U.S.C. § 924 (gun murders during federal crimes of violence and drug trafficking crimes); 18 U.S.C. § 1114 (murder of federal law enforcement officials); 18 U.S.C. § 1118 (murder by a federal prisoner); 18 U.S.C. § 1120 (murder by escaped prisoners). To impute § llll(b)’s “special maritime and territorial jurisdiction of the United States” to any of these statutes would render these provisions essentially inoperable.

Although a summary order, the Second Circuit has rejected attempts to impute the jurisdictional condition in § 1111(b) when the substantive crime charged references the definition of murder in § 1111(a) only. In United States v. Lee, 660 Fed. Appx. 8, 16 (2d Cir. 2016), the Second Circuit rejected defendant’s argument that “the district court lacked jurisdiction over the counts charging him with violating 18 U.S.C. §§ 924(j)(l) and (2), because the murders did not take place within the ‘special maritime and territorial jurisdiction of the United States,’ as defined in 18 U.S.C. § 1111(b).” Rather, as the Second Circuit held, “§ 924(j) ‘incorporates only the definition of murder’ set out in § 1111(a), not the jurisdictional basis set out in § 1111(b).” Id. at 17 (quoting United States v. Young, 248 F.3d 260, 275 (4th Cir. 2001)). Moreover, the Court held that “§ 924(j) sets forth its own independent jurisdictional basis,” id., which is exactly what § 2332(b)(2)' does by criminalizing conduct'“outside the United States.”

Thus, because the Second Circuit has already held in AI Kassar that § 2332(b) applies extraterritorially and because defendant’s arguments for limiting that application are meritless, the Court denies defendant’s motion to dismiss Count One; This holding also requires denial of defendant’s motion for acquittal, which is based on the argument that the Government “failed to present sufficient evidence that the charged conspiracy” targeted U.S. nationals in the “special maritime and territorial jurisdiction of the United States.”

The Court additionally rejects defendant’s argument that the Government had no authority to pursue Count One because the Government did not secure a certification under § 2332(d) from the Attorney General. The Government provided this certification as part of its opposition to the instant motion, and this provision defeats defendant’s argument.

Section 2332(d) provides a limitation on federal prosecution by requiring the following:

No prosecution for any offense described in this section shall be undertaken by the United States except on written certification of the Attorney General or the highest ranking. subordinate of the Attorney General with responsibility for criminal prosecutions that, in- the judgment of the certifying official, such offense was intended to coerce, intimidate, or retaliate against a government or a civilian population. .

18 U.S.C. § 2332(d). As held in United States v. Siddiqui, 699 F.3d 690, 699-700 (2d Cir. 2012), a § 2332(d) certification is timely made if it is made, on the date of the indictment. Here, the certification was provided by then-Deputy Attorney General of the United States, James M. Cole, on February 21, 2012, the date that the operative Indictment was returned in this case.

To the extent defendant’s argument is that the'Government’s failure to provide the certification at trial means that the Government did not meet its burden, I reject that argument. As the Second Circuit held in United States v. Yousef, 327 F.3d 56, 116-18 (2d Cir. 2003), the § 2332(d) certification requirement is n