govinfo:USCOURTS-azd-2_12-cr-01263-3

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
United States of America, 
 
Plaintiff, 
 
v. 
 
Ahmed Alahmedalabdaloklah, 
 
Defendant.
No. CR-12-01263-PHX-NVW
 
ORDER 
 
Before the Court is Defendant’s Motion to Dismiss Counts Two, Three, and Four 
for Failure to State an Offense Due to Lack of Extraterritorial Ap plication (Statutory) 
(Doc. 180). 
I. LEGAL STANDARD 
The indictment must be “a plain, concis e, and definite writte n statement of the 
essential facts constituting the offense char ged.” Fed. R. Crim. P. 7(c)(1). “An 
indictment should be read in its entirety, construed according to common sense, and 
interpreted to include facts which are nece ssarily implied.” United States v. Berger, 473 
F.3d 1080, 1103 (9th Cir. 2007). 
In ruling on a pretrial motion under Rule 12(b)(3)(B)(v) of th e Federal Rules of 
Criminal Procedure to dismiss an indictment fo r failure to state an offense, the district 
court is bound by the four corners of the indictment. United States v. Boren , 278 F.3d 
911, 914 (9th Cir. 2002). In analyzing whet her a cognizable offense has been charged, 

 
 
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the court must accept as true the allegations in the indictment. Id. The court should not 
consider evidence not appearing on the face of the indictment. Id. 
II. ANALYSIS 
A. Extraterritoriality 
“It is a longstanding principle of American law that legislation of Congress, unless 
a contrary intent appears, is meant to apply only within the territori al jurisdiction of the 
United States.” Morrison v. Nat’l Australia Bank Ltd. , 561 U.S. 247, 255 (2010) 
(citations omitted). “Absent clearly expressed congressional intent to the contrary, 
federal laws will be construed to have only domestic application.” RJR Nabisco, Inc. v. 
European Comm’ty, __ U.S. __, 136 S. Ct. 2090, 2100 (2016). 
Courts apply a two-step framework to analyze extraterritoriality issues. Id. at 
2101. At the first step, courts determine “w hether the statute gives a clear, affirmative 
indication that it applies extraterritorially.” Id. If it does not, then at the second step, 
courts determine whether the case involves a domestic application of the statute. Id. If 
the presumption against extraterri toriality is rebutted at the firs t step, there is no need to 
proceed to the second step. Id. at 2101 n.5. 
A “clear, affirmative indication” does no t require an express statement of 
extraterritoriality, but rather may be demonstrated by context. Id. at 2102. Congressional 
intent can be inferred from th e nature of the crime. United States v. Bowman , 260 U.S. 
94, 97-98 (1922). If punishment of crimes agains t private individuals or their property is 
to be extended to include crimes outside of the strict territorial jurisdiction of the 
government exercising jurisdiction, it is expe cted that Congress would expressly say so. 
Id. at 98. However, it may be inferred that C ongress intended extraterritorial application 
of a criminal statute punishing crimes agai nst government without making an express 
statement: 
But the same rule of interpretation should not be applied to criminal 
statutes which are, as a class, not l ogically dependent on their locality for 
the government’s jurisdiction, but are enacted because of the right of the 

 
 
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government to defend itself agains t obstruction, or fraud wherever 
perpetrated, especially if committed by its own citizens officers or agents. 
Some such offenses can only be committed within the territorial jurisdiction 
of the government because of the lo cal acts required to constitute them. 
Others are such that to lim it their locus to the stric tly territorial jurisdiction 
would be greatly to curtail the scope and usefulness of the statute and leave 
open a large immunity for frauds as easily committed by citizens on the 
high seas and in foreign countries as at home. In such cases, Congress has 
not thought it necessary to make specific provision in the law that the locus 
shall include the high seas and foreign countries, but allows it to be inferred 
from the nature of the offense. 
Id. 
Thus, a criminal statute dealing with act s that are directly injurious to the 
government, and are capable of perpet ration without regard to particular 
locality, is to be construed as applic able to citizens of the United States 
upon the high seas or in a foreign country, though there be no express 
declaration to that effect. 
Skiriotes v. Florida , 313 U.S. 69, 73-74 (1941); accord Stegeman v. United States , 425 
F.2d 984, 986 (9th Cir. 1970) (criminal statut e applied extraterritori ally because it “was 
enacted to serve important interests of government, not merely to protect individuals who 
might be harmed by the prohibited conduct”). See also United States v. Ubaldo, 859 F.3d 
690, 2017 WL 2485848, at *7 (9th Cir. 2017) (presumption against extraterritoriality 
rebutted by legislative histor y and because “illegally impor ting weapons into the United 
States by its very nature targets conduct that almost always originates outside the United 
States”); United States v. Felix-Gutierrez , 940 F.2d 1200, 1204 (9th Cir. 1991) 
(extraterritorial jurisdiction will be inferred for criminal statutes that were enacted 
because of the government’s right to defend itself). 
“Where the locus of the conduct is not relevant to the end sought by the enactment 
of the statute, and the statute prohibits co nduct that obstructs th e functioning of the 
United States government, it is reasonable to infer congression al intent to reach crimes 
committed abroad.” United States v. Vasquez-Velasco , 15 F.3d 833, 839 (9th Cir. 1994) 
(internal quotation marks and citation omitted). Moreover, in corporation of predicates 

 
 
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that plainly apply to foreign conduct provides a clear, affirmative indication of a statute’s 
extraterritorial application, but only to the extent that the predicates alleged in a specific 
case themselves apply extraterritorially. RJR Nabisco, 136 S. Ct. at 2102. 
B. Count Two: Conspiracy to Malic iously Damage or Destroy U.S. 
Government Property by Means of an Explosive (18 U.S.C. § 844(f)(1), 
(2), and (n)) 
Count Two alleges violati on of 18 U.S.C. § 844(f)(1), (2), and (n) by knowingly 
conspiring to “maliciously damage, destroy, attempt to damage, attempt to destroy, 
vehicles, used by the United St ates Military in Iraq, in w hole and in part owned, or 
possessed by the United States Department of Defense, a department of the United States, 
by means of explosives.” Su bsection 844(f) expressly applies to malicious damage to or 
destruction of, by means of an explosive, an y vehicle owned or possessed by the United 
States or any department or agency thereof. 
The express terms of § 844(f)(1), (2), and (n) indicate that it is not logically 
dependent on locality for jurisd iction, but was enacted beca use of the “right of the 
government to defend itself . . . wherever perpetrated.” See Bowman, 260 U.S. at 98. 
Although “§ 844(f) contains no provision explicitly authoriz ing extraterritorial use,” 
“[d]amaging or destroying U.S. property unquestionably harms the U.S. Government,” 
and Ҥ 844(f) had many obvious extraterritorial applications at the time of its enactment 
or most recent amendment.” United States v. Abu Khatallah , 151 F. Supp. 3d 116, 134 
(D.D.C. 2015). 
Section 844 clearly targets a vast range of destructive behavior undertaken 
within the territorial United States. But its independently operative 
provisions that protect U.S. property could foreseeably be applied abroad in 
a great number of situations; this mu st have been known when the statute 
was modified in 2002, as well. 
Id. at 134-35 (concluding § 844(f) applies extraterritoria lly). Considering a similar 
criminal statute, the Ninth Circuit held that 18 U.S.C. § 641 prohibits theft of government 
property wherever located because it prohibits conduct that is obstructive of the functions 

 
 
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of government and the locus of the conduc t is not relevant to the end sought by the 
statute. United States v. Cotton, 471 F.2d 744, 751 (9th Cir. 1973). 
The Court infers a clear, affirmative in dication of congressional intent that 
§ 844(f)(1), (2), and (n) has extraterritorial app lication because it punishes crimes against 
government and is not logically dependent on their locality. 
C. Count Three: Possession of a Destructive Device in Furtherance of a 
Crime of Violence and Aiding and Abetting (18 U.S.C. §§ 924(c)(1)(A), 
(B)(ii), and 2) 
Count Four: Conspiracy to Possess a Destructive Device in 
Furtherance of a Crime of Violence (18 U.S.C. § 924(o)) 
Counts Three and Four allege possession of a destructive device in furtherance of 
a crime of violence as set forth in Counts One and Two. As determined above, Count 
Two alleges violation of a criminal statute w ith extraterritorial a pplication. Count One 
alleges violation of 18 U.S.C. § 2332a(a)(1) and (3), which criminalizes conspiracy to use 
a weapon of mass destruction “against a national of the United States while such national 
is outside the United States” a nd “against any property that is owned, leased or used by 
the United States or by any department or agency of the Unite d States, whether the 
property is within or outside of the United States.” Incorporation of predicates that apply 
to foreign conduct establishes extraterritorial application for the criminal violations 
alleged in Counts Three and Four. See RJR Nabisco, 136 S. Ct. at 2102. 
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Counts Two, 
Three, and Four for Failure to State an Offense Due to Lack of Extraterritorial 
Application (Statutory) (Doc. 180) is denied. 
Dated this 7th day of July, 2017. 
 
 

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