govinfo:USCOURTS-dcd-1_22-cr-00392-3

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
UNITED STATES OF AMERICA 
 
 v. 
 
ABU AGILA MOHAMMAD 
MAS’UD KHEIR AL-MARIMI, 
 
 Defendant. 
 
 No. 22-cr-392 (DLF) 
 
 
 
MEMORANDUM OPINION AND ORDER 
Before the Court is Abu Agila Mohammad Mas’ud Kheir Al-Marimi’s Motion to Dismiss 
for Lack of Extraterritorial Jurisdiction. Dkt. 252. For the following reasons, the Court will grant 
the motion in part. 
I. Background 
The charges in this case relate to the December 21, 1988, bombing of Pan American World 
Airways Flight 103 over Lockerbie, Scotland. Pan Am was a commercial passenger airline based 
in the United States, and the subject aircraft was leased from and owned by a corporation created 
under the laws of New York. Indictment ¶ 1, Dkt. 7. At the time of its destruction, Pan Am Flight 
103 was en route to John F. Kennedy Airport in New York City from London’s Heathrow Airport. 
Id. ¶ 3. All 259 individuals aboard t he aircraft —190 of whom were Americans —died in the 
bombing, along with 11 residents of the town of Lockerbie. Id. ¶¶ 4, 6, 12. 
Al-Marimi is charged in a three -count indictment. Count I charges Al-Marimi with 
destruction of an aircraft resulting in death, in violation of 18 U.S.C. §§ 32(a)(2), 34, and 2. 
Section 32(a)(2) makes it a crime to willfully “plac[e] or caus[e] to be placed a destructive device 
or substance in, upon, or in proximity to” any aircraft, 18 U.S.C. § 32(a)(2), “in the special aircraft 

 
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jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, 
overseas, or foreign air commerce,” id. § 32(a)(1). Section 34 provides for an enhanced penalty 
when such an action results in death. Id. § 34. 
Count II charges Al-Marimi with destruction of an aircraft resulting in death, in violation 
of 18 U.S.C. §§ 32(a)(1), 34, and 2. Section 32(a)(1) makes it a crime to willfully “se[t] fire to, 
damag[e], destro[y], disabl[e], or wrec[k] any aircraft in the special aircraft jurisdiction of the 
United States or any civil aircraft used, operated, or employed in interstate, overseas, or f oreign 
air commerce.” Id. § 32(a)(1). 
Count III charges Al-Marimi with “maliciously damag[ing] or destroy[ing ] . . . by means 
of fire or an explosive, any building, vehicle, or other real or personal property used in interstate 
or foreign commerce or in any activity affecting interstate or foreign commerce.” Id. § 844(i). 
II. Legal Standard 
Under Rule 12(b)(1) of the Federal Rules of Criminal Procedure, a party “may raise by 
pretrial motion any defense, objection, or request that the court can determine without a trial on 
the merits.” Fed. R. Crim. P. 12(b)(1) . Such a pretrial motion may challenge “a defect in the 
indictment or information” requiring dismissal. Fed. R. Crim. P. 12(b)(3)(B). When considering 
a pretrial motion to dismiss, the trial court must assume the truth of the facts alleged in the charging 
instrument. See United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). 
III. Analysis 
Al-Marimi moves to dismiss each count, arguing that the statutes under which he is charged 
do not apply extraterritorially. See Mot. to Dismiss 1, Dkt. 252. For the reasons that follow, the 
Court will deny Al-Marimi’s motion as to Counts I and II but grant his motion as to Count III. 

 
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A. The Presumption Against Extraterritorial Application 
“It is a longstanding principle of American law that legislation of Congress, unless a 
contrary intent appears, is meant to apply only within the territorial jurisdiction of the United 
States.” Smith v. United States, 507 U.S. 197, 204 (1993) (citation modified). The “presumption 
that United States law governs domestically but does not rule the world” is associated with a 
corresponding canon of statutory interpretation known as the “presumption against extraterritorial 
application.” Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108, 115 (2013) (citation modified). 
That canon provides that, “when a statute gives no clear indication of an extraterritorial application, 
it has none.” Id. (citation modified). Properly applied, “[i]t serves to protect against unintended 
clashes between our laws and those of other nations which could result in international discord.” 
EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). 
In applying the presumption against extraterritorial application, federal courts “look to see 
whether language in the relevant Act gives any indication of a congressional purpose to extend its 
coverage beyond places over which the United States has sovereignty or has some measure of 
legislative control.” Id. (citation modified). The canon, however, is not a “clear statement rule.” 
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 265 (2010) (citation modified). A statute need 
not announce “this law applies abroad”—a court applying the canon may look beyond the statutory 
text to consider statutory context as well. Id. (citation modified); see Small v. United States, 544 
U.S. 385, 391 (2005) (“statutory language, context, history, or purpose” may overcome 
presumption); United States v. Delgado -Garcia, 374 F.3d 1337, 1344 (D.C. Cir. 2004) (“[W]e 
presumptively read the text of congressional statutes not to apply extraterritorially, unless there 
are contextual reasons for reading the text otherwise.”). But w here neither text nor context gives 
a “clear indication of extraterritoriality,” Morrison, 561 U.S. at 265, or a statute’s extraterritorial 

 
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application is merely “plausible,” Arabian Am. Oil Co., 499 U.S. at 250; see id. at 253; Validus 
Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1047 (D.C. Cir. 2015), the presumption is not 
overcome. 
The party asserting that a statute applies extraterritorially bears the burden of mak ing an 
“affirmative showing” sufficient to overcome the presumption against extraterritorial application. 
Arabian Am. Oil Co., 499 U.S. at 250. Furthermore, “[i]n looking . . . to the statutory text, context, 
purpose, and legislative history for a clear indication of Congress’s intent, the court necessarily 
avoids any case-by-case attempt to ‘divine what Congress would have wanted if it had thought of 
the situation before the court’ so as to ‘preserve a stable background against which Congress can 
legislate with predictable effects.’” Validus Reinsurance, 786 F.3d at 1046 (citation modified) 
(quoting Morrison, 561 U.S. at 261). 
B. Counts I & II – 18 U.S.C. § 32(a)(1), (a)(2) 
As relevant here, 18 U.S.C. § 32(a)(1) and (a)(2) make unlawful certain acts involving 
aircraft “in the special aircraft jurisdiction of the United States.” 18 U.S.C. § 32(a)(1); see id. 
§ 32(a)(2) (referring to “any such aircraft”). For the purposes of both subsections, the term “special 
aircraft jurisdiction of the United States” encompasses certain “aircraft in flight,” including a “civil 
aircraft of the United States,” an “aircraft of the armed forces of the United States,” 1 “another 
aircraft in the United States,” 2 and “another aircraft outside the United States that has its next 
scheduled destination or last place of departure in the United States, if the aircraft next lands in the 
 
1 At the time of the charged offense, an “aircraft of the national defense forces of the United 
States.” 49 U.S.C. app. § 1301(38)(b) (1988). 
2 At the time of the charged offense, “any other aircraft within the United States.” 49 U.S.C. app. 
§ 1301(38)(c) (1988). 

 
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United States.” 3 49 U.S.C. § 46501(2); see 18 U.S.C. § 31(b) (cross -referencing 49 U.S.C. 
§ 46501). 
 The extraterritorial reach of subsections 32(a)(1) and (a)(2) is clear from the statutory text. 
To start, the disjunctive definition of “special aircraft jurisdiction”—which includes both “a civil 
aircraft of the United States” and “another aircraft in the United States,” 49 U.S.C. § 46501(2)(A), 
(C) (emphases added)—establishes that the term encompasses certain civil aircraft of the United 
States that are not in the United States, as interpreting the definitional provision otherwise would 
render the former subcategory superfluous. See Corley v. United States, 556 U.S. 303, 314 (2009) 
(noting that “one of the mos t basic interpretive canons” is that “a statute should be construed so 
that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or 
insignificant” (citation modified)). Furthermore, the definition explicitly encompasses certain 
“aircraft outside the United States” that meet certain conditions, 49 U.S.C. § 46501(2)(D) 
(emphasis added), including any aircraft “that has its next scheduled destination or last place of 
departure in the United States, if the aircraft next lands in the United States,” id. § 46501(2)(D)(i). 
Each of these aspects of the statutory definition of “special aircraft jurisdiction” provides a “clear 
indication of an extraterritorial application.” Morrison, 561 U.S. at 255 ; see United States v. 
Yousef, 327 F.3d 56, 86 –87 (2d Cir. 2003) (concluding that 18 U.S.C. § 32(a) applies 
extraterritorially based on different aspects of the statutory text); United States v. Hamidullin, 114 
F. Supp. 3d 365, 384 (E.D. Va. 2015) (“The text of the applicable fed eral statutes makes it clear 
that Congress intended § 32(a) to apply extraterritorially.” (citation modified)) . That clear 
 
3 At the time of the charged offense, “any other aircraft outside the United States that has its next 
scheduled destination or last point of departure in the United States, if that aircraft next actually 
lands in the United States . . . while that aircraft is in flight .” 49 U.S.C. app. § 1301(38)(d)(i) 
(1988). 

 
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indication ends the Court’s inquiry. See Garvey v. Admin. Rev. Bd., 56 F.4th 110, 122 (D.C. Cir. 
2022) (“ Where the text is not clear , we turn next to assessing whether any indication of 
congressional intent overcomes the presumption against extraterritoriality.” (emphasis added)). 
 Al-Marimi argues that, even if § 32(a)(1) and 32(a)(2) reach aircraft outside the United 
States, “it does not follow . . . that Congress intended the provisions to apply to conduct that occurs 
outside the United States.” Reply 2 , Dkt. 280 . But an individual who “sets fire to,” 18 U.S.C. 
§ 32(a)(1), or “places . . . a destructive device . . . in,” id. § 32(a)(2), an “aircraft outside the United 
States that has its next scheduled destination . . . in the United States, 49 U.S.C. § 46501(2)(D)(i), 
almost certainly performs the prescribed conduct outside of U.S. borders. As such, the proscribed 
conduct itself “impl[ies] extraterritorial reach.” Kiobel, 569 U.S. at 118. Contrast, e.g., id. (“The 
[Alien Tort Statute] covers actions by aliens for violations of the law of nations, but that does not 
imply extraterritorial reach—such violations affecting aliens can occur either within or outside the 
United States.”). This extraterritorial reach is not merely “plausible ,” Arabian Am. Oil Co. , 499 
U.S. at 25 3, but certain. It is therefore sufficient to “override the presumption against 
extraterritorial application” as to § 32(a)(1) and 32(a)(2). Id. 
 Accordingly, the Court will deny Al-Marimi’s motion as to Counts I and II. 
C. Count III – 18 U.S.C. § 844(i) 
 The Court will, however, grant Al-Marimi’s motion as to Count III. The text, context, and 
legislative history of § 844(i) do not evince an “affirmative intention of the Congress clearly 
expressed” sufficient to overcome the presumption against extraterritorial application, id. at 248 
(citation modified) , and the government’s arguments in favor of extraterritoriality are 
unpersuasive. 

 
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1. Text, Context, and Legislative History 
Section 844(i) criminalizes “ maliciously damag[ing] or destroy[ing], or attempt[ing] to 
damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal 
property used in interstate or foreign commerce or in any activity affecting interstate or fore ign 
commerce.” 18 U.S.C. § 844(i). 
Nothing in this statutory text provides an “affirmative indication” that § 844(i) applies 
extraterritorially. Morrison, 561 U.S. at 265. The provision ’s sole gesture toward overseas 
conduct—“foreign commerce” —cannot overcome the presumption against extraterritorial 
application. The Supreme Court has “repeatedly held that even statutes that contain broad 
language in their definitions of ‘commerce’ that expressly refer to ‘foreign commerce’ do not apply 
abroad.” Id. at 262–63 (citation modified). In New York Central Railroad Co . v. Chisholm, 268 
U.S. 29 (1925), for example, the Supreme Court held that the Federal Employers’ Liability Act 
“contains no words which defini tely disclose an intention to give it extraterritorial effect,” id. at 
31, despite “broad jurisdictional language,” Arabian Am. Oil Co. , 499 U.S . at 2 51, rendering 
common carriers by railroad liable for certain injuries while engaging in “interstate or foreign 
commerce,” 45 U.S.C. § 51. Similarly, in McCulloch v. Sociedad Nacional de Mar ineros de 
Honduras, 372 U.S. 10 (1963), the Supreme Court held that the National Labor Relations Act does 
not contain “any specific language” reflecting a congressional intent to extend the Act to foreign-
flag ships employing alien seamen, id. at 19; see id. at 13, notwithstanding the Act’s broad 
references to foreign commerce, see 29 U.S.C. § 152(6). And in EEOC v. Arabian American Oil 
Co., 499 U.S. 244 (1991), the Supreme Court rejected the argument that Title VII’s expansive 
definition of the jurisdictional term “commerce” —which includes “trade, traffic, commerce, 
transportation, transmission, or communication . . . between a State and any place outside thereof,” 

 
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29 U.S.C. § 2000e(g)—“evinces a clearly expressed intent on behalf of Congress to legislate 
extraterritorially,” Arabian Am. Oil Co., 499 U.S. at 248; see id. at 248–53. 
There is no meaningful difference between § 844(i)’s “general reference to foreign 
commerce” and those in statutory provisions that the Supreme Court has held fail to “defeat the 
presumption against extraterritoriality.” Morrison, 561 U.S. at 263. Contrast, e.g., United States 
v. Weingarten , 632 F.3d 60, 66 (2d Cir. 2011) (“Moreover, § 2423(b)’s reference to ‘foreign 
commerce’ is not a ‘boilerplate’ reference of the type the Supreme Court has found insufficient to 
support extraterritorial application of f ederal statutes. Rather than forming part of a generic 
definition, the words ‘travel[] in foreign commerce’ here go to the heart of the statute’s operative 
text, describing the specific conduct proscribed by the statute.” (citation modified)). 
The government asserts that each of the above cited cases is distinguishable as involving a 
civil statute and suggests that the presumption against extraterritorial application is weaker in the 
criminal context. See Opp’n 8 , Dkt. 272 . But t he Supreme Court has made clear that the 
presumption applies “in all cases, preserving a stable background against which Congress can 
legislate with predictable effects.” Morrison, 561 U.S. at 261. And the D.C. Circuit has observed 
that the presumption “makes sense” in the criminal context “because we assume that Congress 
desires to avoid conflict with other nations.” Delgado-Garcia, 374 F.3d at 1344. Neither the 
Supreme Court nor the D.C. Circuit has indicated that the presumption against extraterritorial 
application diminishes when Congress legislates in the criminal sphere. 
The government further argues that § 844(i)’s context and legislative history show that the 
provision applies extraterritorially. In particular, the government notes that neither § 844(i)’s 
surrounding subsections nor neighboring provision § 842 “explicitly provide extraterritorial 
jurisdiction in a way that would support a negative inference from [§ 844(i)’s] silence on the 

 
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issue,” while “several” neighboring provisions “involve the importation of explosives” —an act 
the government argues is “inherently international.” Opp’n 8 –9 (citation modified). The 
government also contends that § 844(i)’s legislative history indicates that Congress “‘intended to 
protect all business property,’ a category to which a U.S. commercial airliner clearly belongs, 
wherever it happens to be at the time it is destroyed.” Id. at 10 (citation modified) (quoting Russell 
v. United States, 471 U.S. 858, 862 (1985)); see id. at 9–10. 
The Court disagrees. To start, the absence of a negative inference from surrounding 
provisions does not establish a positive inference suggesting extraterritorial application. Contrast, 
e.g., United States v. Sota, 948 F.3d 356, 358 (D.C. Cir. 2020) (“Congress’s explicit provision for 
extraterritorial jurisdiction in one provision . . . militates against inferring any such application for 
a closely related and nearby provision with no such signal.”); Garvey, 56 F.4th at 124 (“Congress’s 
silence on Section 806’s scope —even as it amended the provision and provided for 
extraterritoriality elsewhere in the same statute —weighs strongly against a finding that Congress 
intended to provide for the overseas applicati on of Section 806.”) . Furthermore, even assuming 
that the government is correct that neighboring provisions regarding the importation of explosives 
involve an “inherently international transaction ,” Opp’n 9 (citation modified), § 844(i) does not 
itself concern importation. The mere fact that § 844(i) was enacted alongside several neighboring 
provisions concerning importation does not, as the government contends, suggest that any 
inference of extraterritoriality extends also to § 844(i). Finally, legislative history indicating that 
Congress intended § 844(i) to “protect all business property,” id. at 10 (citation modified), does 
not “evince an unambiguous congressional intent” to protect all such property wherever located, 
Validus Reinsurance, 786 F.3d at 1048; cf. Kiobel, 569 U.S. at 118 (“[I]t is well established that 
generic terms like ‘any’ or ‘every’ do not rebut the presumption against extraterritoriality.”). “[N]o 

 
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legislation pursues its purposes at all costs.” Rodriguez v. United States , 480 U.S. 522, 525 –26 
(1987). And the presumption against extraterritorial application gives “particular force” to the 
principle that “the task of statutory interpretation cannot be reduced to a mechanical choice in 
which the interpretation that would advance the statute’s general purposes to a greater extent must 
always prevail.” Validus Reinsurance, 786 F.3d at 1049 (citation modified). 
2. Bowman 
 The government’s argument in favor of extraterritorial application relies primarily on the 
Supreme Court’s decision in United States v. Bowman, 260 U.S. 94 (1922), “a nearly century-old 
chestnut of extraterritoriality doctrine” that “sits uneasily” with more modern Supreme Cour t 
precedent. United States v. Abu Khatallah , 151 F. Supp. 3d 116, 125 (D.D.C. 2015) . For the 
reasons that follow, the Court will conclude that Bowman does not counsel in favor of a finding of 
extraterritoriality as to § 844(i). 
i. The Supreme Court’s Decision in Bowman 
 Bowman involved 18 U.S.C. § 35, a criminal statute that then proscribed knowingly 
making or conspiring to make certain “false, fictitious, or fraudulent” claims “upon or against the 
Government of the United States, or any department or officer thereof, or any corporation in which 
the United States of America is a stockholder.” Bowman, 260 U.S. at 100 n.1 (citation modified); 
see id. at 101–02. The defendants in the case had allegedly conspired to defraud the United States 
Shipping Board Emergency Fleet Corporation —of which the United States was the sole 
stockholder—while aboard a n Emergency Fleet Corporation vessel as it approached and upon 
reaching a harbor in Brazil. See id. at 95–96. No party disputed that the charged conduct occurred 
outside of the borders of the United States. See id. at 96 –97. Rather, the defendants’ “sole 

 
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objection was that the crime was committed without the jurisdiction of the United States or of any 
State thereof and on the high seas or within the jurisdiction of Brazil.” Id. 
 The district court held that § 35 did not reach extraterritorial conduct. See United States v. 
Bowman, 287 F. 588, 593 (S.D.N.Y. 1921). The court noted that “[o]ne of the accepted functions 
of a sovereign is to regulate the ships under its flag on the high seas and the conduct of its citizens 
while on those ships” and that “Congress has power to enact legislation such as that embodied in 
[§ 35], applicable upon the high seas, if it so determines.” Id. at 592. And it further acknowledged 
that, although the criminal laws of the United States are ordinarily effective only within U.S. 
territory, “the high seas are a part peculiarly within the jurisdiction of the United States in the 
application of its criminal laws , as distinguished from the states and their laws .” Id. at 592–93. 
The district court observed, however, that “[w]hen . . . the Congress has intended that its laws shall 
be operative on the high seas, it has so stated.” Id. at 593. Because “[j]urisdiction of criminal 
offenses” must be conferred rather than inferred and § 35, unlike other criminal statutes, did not 
contain “language extending the locus of the crime to the high seas or beyond the territory of the 
United States,” the district court held that the statute did not extend to offenses committed on the 
high seas. Id. 
 On direct review, the Supreme Court reversed. Bowman, 260 U.S. at 103. The Court noted 
that the locus of a statute, “when not specially defined, depends upon the purpose of Congress as 
evinced by the description and nature of the crime and upon the territorial limitations upon the 
power and jurisdiction of a government to punish crime under the law of nations.” Id. at 97–98. 
“Crimes against private individuals or their property,” the Court explained, “affect the peace and 
good order of the community” and “must of course be committed within the territorial jurisdiction 
of the government where it may properly exercise it.” Id. at 98. Accordingly, “[i]f punishment of 

 
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them is to be extended to include those committed outside of the strict territorial jurisdiction, it is 
natural for Congress to say so in the statute, and failure to do so will negative the purpose of 
Congress in this regard.” Id. The Court reasoned, however, that this “rule of interpretation” should 
not be applied to criminal statutes that are “not logically dependent on their locality for the 
Government’s jurisdiction, but are enacted because of the right of the Government to defend itself 
against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, 
officers or agents.” Id. “Some such offenses,” it explained, “can only be committed within the 
territorial jurisdiction of the Government because of the local acts required to constitute them.” 
Id. But other offenses, the Court continued, “are such that to limit their locus to the strictly 
territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave 
open a large immunity for frau ds as easily committed by citizens on the high seas and in foreign 
countries as at home.” Id.; see id. at 102 (referencing laws that “protect [the United States] and its 
property”). “In such cases,” the Court observed, “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. at 98. 
The Supreme Court proceeded to identify six federal crimes that, like § 35, fell within a 
chapter of the U.S. Code entitled “Offenses against the operations of the Government,” and, in the 
Court’s view, gave rise to an inference of extraterritoriality:4 
• Knowingly certifying a false invoice as a consul. – “Clearly the locus of this 
crime as intended by Congress is in a foreign country.” Id. at 99. 
• Forging or altering ship’s papers. – “The natural inference from the character 
of the offense is that the sea would be a probable place for its commission.” Id. 
 
4 Although the Supreme Court’s discussion of these statutory provisions was dicta, they “are 
important data points for understanding Bowman’s underlying rationale,” especially in light of the 
fact that “Bowman has been entirely absent from the Supreme Court’s modern extraterritoriality 
decisions.” Abu Khatallah, 151 F. Supp. 3d at 126–27. 

 
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• Enticing desertions from the naval service. – “Is it possible that Congress did 
not intend by this to include such enticing done aboard ship on the high seas or 
in a foreign port, where it would be most likely to be done?” Id. 
• Bribing a United States officer of the civil, military, or naval service to violate 
his duty or to aid in committing a fraud on the United States. – “It is hardly 
reasonable to construe this not to include such offenses when the bribe is offered 
to a consul, ambassador, an army or a naval officer in a foreign country or on 
the high seas, whose duties are being performed there and when his connivance 
at such fraud must occur there.” Id. 
• Willfully doing or aiding to do any act relating to the bringing in, custody, sale 
or other disposition of property captured as prize, with intent to defraud, delay 
or injure the United States or any captor or claimant of such property. – “This 
would naturally often occur at sea, and Congress could not have meant to 
confine it to the land of the United States.” Id. 
• Stealing, embezzling, or knowingly applying to one’s own use ordnance, arms, 
ammunition, clothing, subsistence, stores, money , or other property of the 
United States furnished or to be used for military or naval service. – “It would 
hardly be reasonable to hold that if any one . . . were to steal or embezzle such 
property which may properly and lawfully be in the custody of army or naval 
officers either in foreign countries, in foreign ports or on the high seas, it would 
not be in such places an offense wh ich Congress intended to punish by this 
section.” Id. at 99–100. 
“What [wa]s true of” each of these criminal provisions , the Supreme Court concluded, 
“[wa]s true of § 35.” Id. at 100; see id. at 100–03. The Court further noted that Congress had 
amended the statute in 1918 to include a corporation in which the United States owns stock in 
order to “protect the Emergency Fleet Corporation . . . from fraud.” Id. at 101–02. In light of that 
amendment and the fact that the Corporation “was expected to engage in, and did engage in, a 
most extensive ocean transportation business and its ships were seen in every great port of the 
world open during the war,” the Court “c[ould] not suppose that when Congress enacted the statute 
or amended it, it did not have in mind that a wide field for such frauds upon the Government was 
in private and public vessels of the United States on the high seas and in foreign ports and beyond 
the land jurisdiction of the United States.” Id. at 102. Accordingly, the Court held that Congress 
intended to encompass such frauds within § 35. Id. 

 
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ii. The D.C. Circuit’s Application of Bowman 
While contemporary Supreme Court cases involving the presumption against 
extraterritorial application have neither cited nor applied Bowman, the D.C. Circuit has twice 
applied the case in recent years. 
In United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004), the D.C. Circuit held 
that 8 U.S.C. § 1324(a)—which criminalizes encouraging or inducing an alien to enter the United 
States illegally, or bringing or attempting to bring an unauthorized alien to the United States —
applies to extraterritorial conduct. See id. at 1340, 1344. The court explained that “this country’s 
border-control policies are of crucial importance to the national security and foreign policy of the 
United States.” Id. at 1345. That “contextual feature,” the court reasoned, “establishes that 
[§ 1324(a)] is fundamentally international, not simply domestic, in focus and effect” and serves as 
“affirmative contextual evidence of congressional intent” to extend the statute extraterritorially. 
Id. 
The D.C. Circuit further found that “specific textual evidence” suggested that, as in 
Bowman, “the natural inference from the character of [§ 1324(a)’s proscribed] offenses is that an 
extraterritorial location would be a probable place for their commission.” Id. (citation modified). 
For example, the court noted that § 1324(a) proscribes attempts to bring aliens to the United States. 
Id. at 1347. “Many incomplete attempts,” the court reasoned, “occur outside the territorial 
jurisdiction of the United Sta tes”—“[b]ecause an alien will not be in the United States if the 
attempt is incomplete, the offender will ordinarily also be outside the United States during the 
attempt.” Id. The court further noted that § 1324(a)’s “prohibition on encouraging or inducing 
illegal immigration . . . also has many natural extraterritorial applications ,” as it is “much easier” 
to induce an illegal immigrant to come to the United States “when in proximity to the immigrant.” 

 
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Id. at 1347 –48. As such, the court concluded that the provision “by its terms contemplates 
application to much extraterritorial conduct.” Id. at 1348. Based on this “textual evidence” and 
§ 1324(a)’s “international focus,” the D.C. Circuit found the presumption against extraterritorial 
application overcome. Id. at 1351. 
More recently, in United States v. Sota , 948 F.3d 356 (D.C. Cir. 2020), the D.C. Circuit 
held that 18 U.S.C. § 1114—which criminalizes killing or attempting to kill any officer or 
employee of the United States—did not, as then enacted, apply extraterritorially. Id. at 357.5 The 
court began by concluding that the statute did not on its face “speak to extraterritorial application 
one way or the other” and that a “closely related and nearby provision” with explicit extraterritorial 
jurisdiction “militate[d] against inferring any such application” for § 1114. Id. at 358; see id. at 
358–59. 
The court then proceeded to hold that Bowman did not counsel otherwise. See id. at 359–
60. Rejecting the government’s suggestion to “read Bowman as a broad rule that criminal statutes 
that protect the United States government from harm should not be construed to apply only within 
the United States,” the court explained that it had in Delgado-Garcia “rested [its] finding that 
Congress intended extraterritorial application largely on the great likelihood that the outlawed 
conduct would occur abroad.” Id. at 360 (citation modified). Finding no such “high probability” 
as to § 1114, the court declined to construe the statute as applying extraterritorially. Id. 
 
5 Shortly after the D.C. Circuit issued its decision in Sota, Congress amended § 1114 “in light of 
the opinion” and to “clarify the original intent” that the statute “applies extraterritorially.” Jaime 
Zapata and Victor Avila Federal Officers and Employees Protection Act, Pub. L. No. 117 -59, 
§ 2(5), 135 Stat. 1468, 1468 (2021). 

 
16 
iii. Analysis 
Taken together, Bowman, Delgado-Garcia, and Sota stand for the principle that courts may 
infer extraterritorial application where (1) the offense directly harms the U.S. government, see 
Bowman, 260 U.S. at 98 ; Delgado-Garcia, 374 F.3d at 1346 –47; Sota, 948 F.3d at 359 –60; 
Vermilya-Brown Co. v. Connell , 335 U.S. 377, 381 (1948) (construing Bowman as involving 
“crimes directly affecting the Government”); Skiriotes v. Florida , 313 U.S. 69, 73 –74 (1941) 
(similar); and (2) there is a “high probability that the criminalized conduct would occur abroad,” 
Sota, 948 F.3d at 360 ; see Delgado-Garcia, 948 F.3d at 1346 –48 (“much” of the criminalized 
conduct must “occu[r] beyond the borders of the United States”), such that “to limit [the statute’s] 
locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of 
the statute,” Bowman, 260 U.S. at 98; see Delgado-Garcia, 948 F.3d at 1345–46.6 
Section 844(i) does not satisfy this standard. 
To start, § 844(i) does not have textual or contextual features that suggest that it 
criminalizes conduct that harms the United States or its property. Delgado-Garcia, 374 F.3d at 
1345; see Bowman, 260 U.S. at 98, 102. Unlike a statute referencing government property or 
personnel, § 844(i) speaks of generalized harms to “real or personal property used in interstate or 
foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i). 
Contrast, e.g., Bowman, 260 U.S. at 100 n.1 ( criminal statute pertaining to “false, fictitious, or 
fraudulent” claims “upon or against the Government of the United States, or any department or 
 
6 Another court in this District has crafted a similar rule, finding that “ Bowman is satisfied when 
(1) a federal criminal offense directly harms the U.S. Government, and (2) enough foreseeable 
overseas applications existed at the time of a statute’s enactment (or most recent amendment) to 
warrant the inference that Congress both contem plated and authorized prosecutions for 
extraterritorial acts.” Abu Khatallah , 151 F. Supp. 3d at 129 ; see United States v. 
Alahmedalabdaloklah, 94 F.4th 782, 805 (9th Cir. 2024) (adopting this rule). 

 
17 
officer thereof, or any corporation in which the United States of America is a stockholder”); id. at 
99–100 (discussing various offenses against the government); Delgado-Garcia, 374 F.3d at 1340, 
1348 (discussing offenses involving border control policies). And there is no indication that 
Congress enacted § 844(i) with an eye toward safeguarding government property or interests . 
Contrast, e.g., Bowman, 260 U.S. at 101 –02 (Congress had amended statute in order to protect 
corporation in which the United Sta tes owned stock from fraud); Delgado-Garcia, 374 F.3d at 
1345 (statute, by its terms, implicated government’s border control policies). 
Nor does “specific textual evidence ,” Delgado-Garcia, 374 F.3d at 1345, suggest that 
much of § 844(i)’s proscribed conduct would “[c]learly,” “most likely,” or “naturally” occur 
abroad, Bowman, 260 U.S. at 99. A broad proscription against damaging or destroying “real or 
personal property used in interstate or foreign commerce or in any activity affecting interstate or 
foreign commerce,” 18 U.S.C. § 844(i), does not “by its terms contemplat[e] application to much 
extraterritorial conduct,” Delgado-Garcia, 374 F.3d at 1348. Contrast, e.g., id. at 1347 (reasoning 
that “[m]any incomplete attempts” to bring aliens to the United States “occur outside the territorial 
jurisdiction of the United States” because the offender “will ordinarily also be outside the United 
States during the attempt”) . Indeed, it sounds in the register of a statute addressing “[c]rimes 
against private individuals or their property” that “affect the peace and good order of the 
community” and are most naturally “committed within the territoria l jurisdiction of the 
government.” Bowman, 260 U.S. at 98. Accordingly, the Court cannot conclude that limiting 
§ 844(i)’s “locus to the strictly territorial jurisdiction would be greatly to curtail the scope and 
usefulness of the statute” by “leav[ing] open a large immunity.” Id. 
The government’s arguments in favor of extraterritorial application under Bowman are 
unpersuasive. 

 
18 
First, the government argues that § 844(i) “protects U.S. national security” because “[a]ir 
travel is a highly regulated industry that forms a critical part of the nation’s transportation 
infrastructure.” Opp’n 11; see id. at 11–12. Whatever force that argument would have as to a 
criminal statute specifically directed at safeguarding air travel, see, e.g., 18 U.S.C. § 32(a), § 844(i) 
is not such a provision. Indeed, under the logic of the government’s argument, a criminal statute 
would implicate a security interest of the United States so long as any application of the statute 
could be said to do so. 
Second, the government contends that “[b]ombings of vehicles used in foreign commerce 
are likely to happen abroad.” Opp’n 13. However true that statement might be, neither Bowman 
nor D.C. Circuit precedent call for a finding of extraterritoriality on the basis that the criminalized 
conduct is likely to occur abroad. Rather, there must be a “great likelihood that the outlawed 
conduct would occur abroad, ” Sota, 948 F.3d at 360 (emphasis added) , such that the efficacy of 
the statute depends on the statute applying extraterritorially, see Bowman, 260 U.S. at 98. For the 
reasons already stated, such a “high probability” is not implicated here. Sota, 948 F.3d at 360. 
Third, the government suggests that the Court’s extraterritoriality analysis can be limited 
to the question whether “this application of the statute—to the midair bombing of a U.S.-registered 
aircraft owned by a U.S. company and carrying U.S. citizens en route to the United States —is 
within the scope of what Congress sought to authorize.” Opp’n 14. But the task before the Court 
is to determine whether Congress intended § 844(i) to apply extraterritorially, see Validus 
Reinsurance, 786 F.3d at 1046, not whether Congress would have wanted § 844(i) to reach certain 
proscribed offenses if conducted abroad, cf. Morrison, 561 U.S. at 261 (“The results of judicial -
speculation-made-law—divining what Congress would have wanted if it had thought of the 
situation before the court—demonstrate the wisdom of the presumption against extraterritoriality. 

 
19 
Rather than guess anew in each case, we apply the presumption in all cases, preserving a stable 
background against which Congress can legislate with predictable effects.”). The government 
offers neither binding nor persuasive authority to support its argument that a finding of 
extraterritoriality as to the charged conduct would not compel a finding of extraterritoriality as to 
all conduct that § 844(i) proscribes. 
 Finally, the government asserts in a footnote that, should the Court rule that § 844(i) does 
not apply extraterritorially, “the government reserves the right to argue to the jury that the offense 
occurred within the special maritime and territorial jurisdi ction of the United States ,” which it 
contends “would be a domestic application of the statute.” Opp’n 14 n.12 (citing 18 U.S.C. § 7(5)). 
But § 844(i) does not, by its terms, extend to the “special maritime and territorial jurisdiction of 
the United States.” 18 U.S.C. § 7. Contrast, e.g., United States v. Corey, 232 F.3d 1166, 1169 –
72 (9th Cir. 2000) (addressing 18 U.S.C. §§ 2241 and 2242, both of which “proscribe sexual assault 
within the ‘special maritime and territorial jurisdiction of the United States,’ a phrase defined by 
18 U.S.C. § 7”). And, in any event, the D.C. Circuit has suggested that such jurisdiction qualifies 
as extraterritorial. See United States v. Abukhatallah, 41 F.4th 608, 630 n.12 (D.C. Cir. 2022).7 
Accordingly, the Court concludes that the government’s alternative argument is foreclosed 
and will dismiss Count III for lack of extraterritorial application. 
D. Due Process 
 Al-Marimi further argues that the extraterritorial application of U.S. law to the charged 
conduct violates due process. See Mot. to Dismiss 17–19. The circuits are split on the appropriate 
 
7 Both the Criminal Complaint and the Indictment in this case, for their part, allege that the charged 
conduct occurred “in London, England, Lockerbie, Scotland, and airspace above Lockerbie, 
Scotland, and, therefore, outside of the jurisdiction of any particular state or district of the United 
States, but within the extraterritorial jurisdiction of the United States .” Criminal Compl. 1, Dkt. 
1 (emphasis added); see Indictment ¶ 11 (similar). 

 
20 
standard for such a due process challenge. Compare, e.g., United States v. Ali, 718 F.3d 929, 944 
(D.C. Cir. 2013) (“What appears to be the animating principle governing the due process limits of 
extraterritorial jurisdiction is the idea that no man shall be held criminally responsible for conduct 
which he could not reasonably understand to be proscribed.” (citation modified)), with, e.g., United 
States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011) (“In order to apply extraterritorially a federal 
criminal statute to a defendant consistently with due process, there must be a sufficie nt nexus 
between the defendant and the United States, so that such application would not be arbitrary or 
fundamentally unfair.” (citation modified)). But the D.C. Circuit has “repeatedly declined . . . to 
hold that the Due Process Clause demands [a nexus between the proscribed overseas conduct and 
the United States] —or to even resolve whether the Due Process Clause constrains the 
extraterritorial application of federal criminal laws at all.” In re Sealed Case, 936 F.3d 582, 593–
94 (D.C. Cir. 2019) (citation modified). As Al-Marimi acknowledges, see Mot. to Dismiss 18–19, 
this authority binds this Court and forecloses his due process challenge. 
* * * 
Accordingly, it is 
ORDERED that the defendant’s Motion to Dismiss for Lack of Extraterritorial 
Jurisdiction, Dkt. 252, is DENIED as to Counts I and II and GRANTED as to Count III. 
SO ORDERED. 
 
 
 
 ________________________ 
 DABNEY L. FRIEDRICH 
 United States District Judge 
May 26, 2026 

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