Ninth Circuit confirms extraterritorial reach of federal WMD statutes and approves use of CIPA procedures

In a 111-page opinion, the Ninth Circuit Court of Appeals reversed in part, and affirmed in part the convictions of Syrian national Ahmed Alahmedalabdaloklah (“Oklah”) and remanded the case for resentencing to the district court. (Ninth Circuit Case No. 18-10435.) Oklah used his technical expertise to develop, manufacture, and supply electronic components used to make improvised explosive devices (IEDs) which were subsequently used by terrorist groups to target United States service members overseas. The jury returned a mixed verdict, convicting Oklah on four of six counts: conspiring to use a weapon of mass destruction, conspiring to damage U.S. government property, and two counts of conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same.

The extensive appellate opinion deals with numerous issues, including the parties’ agreement that the final two counts must be vacated in light of subsequent Supreme Court precedent. Of particular interest, however, are the Ninth Circuit’s holdings that (1) the statute criminalizing conspiracy to damage U.S. government property (18 U.S.C. § 844(f)(1), (2), and (n)) has extraterritorial reach and (2) that the government can permissibly use the procedures set forth in the Classified Information Procedures Act (CIPA) to withhold discovery, or offer substitute discovery, to defense counsel to avoid disclosing sensitive national security information.

Federal statutes are subject to a presumption against extraterritorial application. To determine whether the government can permissibly apply a federal statute outside of the United States, courts apply a two-step test. At step one, a court asks whether Congress has “affirmatively and unmistakenly” instructed that the statute is to apply to foreign conduct. If so, the statute applies extraterritorially. Without an affirmative indication, the court proceeds to step two, where it asks whether the conduct “relevant to the statute’s focus” occurred in the United States. If so, the statute can apply extraterritorially to foreign conduct, because the relevant conduct occurred domestically.

The Supreme Court has never applied the presumption against extraterritoriality to a criminal statute. In Oklah, the government urged the Ninth Circuit to hold, citing a Seventh Circuit decision, that the presumption does not apply to criminal statutes at all. Oklah argued that the Ninth should follow the D.C. Circuit’s strict application of the presumption in a 2020 case holding that another criminal statute did not apply abroad because Congress failed to explicitly give the statute extraterritorial reach. The Ninth Circuit rejected both interpretations, finding that the two-step presumption analysis applies in general and that the presumption is overcome in this case.

It articulated a two-step framework specifically tailored to interpreting criminal statutes. The presumption is overcome where (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 to warrant the inference that Congress both contemplated and authorized prosecutions for extraterritorial acts. Applying the precedents, the court found that Section 844(f) does not contain an explicit instruction regarding extraterritorial application, but that the conduct at the heart of the statute – using destructive devices against government property – clearly implicates harms against the government which are likely to occur overseas given the amount of property the government owns outside U.S. borders. The statute can therefore be interpreted to apply to foreign conduct.

The government’s investigation into Oklah’s activities included classified materials which it moved the district court to withhold from Oklah’s defense attorney under CIPA. In a series of four ex parte motions, the government successfully convinced the district court to allow it to withhold or substitute discovery to which Oklah argues he was entitled. Oklah argued on appeal that the CIPA procedures violated his Fifth and Sixth Amendment rights.

CIPA allows the government, upon a sufficient showing to the trial court, to either (1) delete classified information from documents provided to the defense in discovery, (2) substitute a summary of the classified information, or (3) substitute a statement admitting relevant facts which the classified information would tend to prove. District courts review a CIPA motion in camera and ex parte to determine whether the classified material is discoverable under existing law. If so, the government must formally assert the state-secrets privilege at which point the court must determine if the information is “relevant and helpful” to the defense. If it is, the court has discretion to fashion the terms of discovery, including through a substitution. A substitution does not need to be precise but must be evenhanded and neutral. A district court abuses its discretion when it approves a substitution that excludes important exculpatory evidence, fails to provide important context, has slanted wording, etc.

Here, the Ninth Circuit placed itself “in defense counsel’s shoes” and examined the full classified record. The court concluded that the district court did not abuse its discretion by allowing the government to withhold and substitute discovery under CIPA because the withheld information was not discoverable or relevant and helpful, and the substitutions left Oklah with an adequate ability to make use of the information for his defense. The Ninth Circuit praised the district court’s thoroughness and noted that it had rejected one of the government’s CIPA requests and ordered disclosure to Oklah, thereby demonstrating its objectivity.