United States v. Ahmed Abukhatallah

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

10

179, 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 at

923–924; 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).