United States v. Al Kassar
660 F.3d 108, 2011 WL 4375654, 2011 U.S. App. LEXIS 19357 (2011)
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Rule of Law:
Federal criminal statutes apply extraterritorially when the conduct targets U.S. citizens or interests, and a government sting operation does not 'manufacture' jurisdiction or 'authorize' the resulting criminal conduct; furthermore, proving material support for terrorism under 18 U.S.C. § 2339B does not require the government to show intent to further specific terrorist acts.
Facts:
- Monzer al Kassar, a Spanish national, was suspected by the U.S. government of illegal arms trafficking since the 1970s.
- In 2005, the Drug Enforcement Administration (DEA) initiated a sting operation, using a confidential informant, Samir Houchaimi, to locate al Kassar and arrange an illegal arms deal.
- Houchaimi gained the trust of al Kassar's associate, Tareq Mousa al Ghazi, in Lebanon, and then met al Kassar in Beirut using a fake end-user certificate for Nicaragua, leading to a follow-up meeting in Spain.
- In February 2007, in Spain, Houchaimi introduced al Kassar to undercover DEA agents posing as FARC members who expressed interest in buying anti-aircraft missiles (SAMs) for use against the U.S. military in Colombia; al Kassar introduced his associate, Luis Felipe Moreno Godoy.
- Over several months, al Kassar, Godoy, and al Ghazi negotiated the arms deal, explicitly discussing FARC's intent to use the weapons against Americans, with al Ghazi providing negotiation advice and Godoy assisting with down payments.
- Al Kassar provided SAM schematics, detailed smuggling plans, and facilitated arrangements for shipping the weapons, while he and Godoy visited arms factories in Bulgaria and Romania.
- In June 2007, all three defendants were arrested in Romania and Spain in coordinated operations after Godoy and al Ghazi went to pick up final payment in Bucharest.
- Upon extradition to the United States, al Ghazi admitted knowing al Kassar was selling SAMs to FARC, that FARC was a terrorist group intending to kill Americans with the weapons, and that he participated for a commission.
Procedural Posture:
- The Drug Enforcement Administration (DEA) initiated a sting operation that led to the arrests of Monzer al Kassar, Luis Felipe Moreno Godoy, and Tareq Mousa al Ghazi in Romania and Spain in June 2007.
- Godoy and al Ghazi were extradited from Romania to the United States in October 2007, and al Kassar was extradited from Spain to the United States in June 2008.
- The defendants were subsequently indicted in the United States District Court for the Southern District of New York on charges including conspiracy to kill U.S. officers, acquire and export anti-aircraft missiles (SAMs), and provide material support to a known terrorist organization; al Kassar and Godoy were also charged with money laundering and conspiracy to kill U.S. citizens.
- The district court (Rakoff, J.) denied the defendants' motion to dismiss the indictments for due process violations (United States v. al Kassar, 582 F. Supp. 2d 488, 498 (S.D.N.Y. 2008)).
- The district court also denied the defendants' motions to admit classified information related to alleged prior and contemporaneous interactions with Spanish intelligence agents, finding it irrelevant or inadmissible (United States v. Al Kassar, 582 F. Supp. 2d 498, 500 (S.D.N.Y. 2008)).
- Al Ghazi's trial was severed due to hospitalization. Al Kassar and Godoy were convicted by a jury on all five counts.
- Al Ghazi was tried several months later and convicted by a jury of conspiring to kill U.S. officials, to acquire and export SAMs, and to provide material support to a known terrorist organization, but was acquitted of conspiring to kill U.S. citizens.
- Al Kassar and Godoy were sentenced in February 2009 to 30 years and 25 years respectively, and al Ghazi was sentenced in July 2009 to 25 years.
- The defendants timely appealed their convictions to the United States Court of Appeals for the Second Circuit.
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Issue:
Did the United States government have subject-matter jurisdiction to prosecute foreign nationals for extraterritorial conduct targeting U.S. interests through a sting operation, and did the district court correctly interpret the requirements for conspiracy under 18 U.S.C. § 2332g and material support for terrorism under 18 U.S.C. § 2339B?
Opinions:
Majority - Dennis Jacobs, Chief Judge
Yes. The United States had subject-matter jurisdiction to prosecute the defendants, and the district court correctly interpreted the relevant statutes. The court affirmed that federal criminal statutes can apply extraterritorially, even to non-citizens acting entirely abroad, when there is a sufficient nexus between the conduct and the United States, such as an aim to cause harm to U.S. citizens or interests. The defendants' conspiracy to sell arms to FARC for use against the U.S. military established such a nexus, and the geographical location of the sting operation was irrelevant. The court rejected the 'manufactured jurisdiction' defense, explaining that creating an opportunity for criminal conduct through a sting operation does not violate due process, especially when defendants demonstrate predisposition and voluntarily engage in the criminal acts. The court also found no 'outrageous government conduct' because the DEA agents did not employ coercion, intimidation, or physical force, and tactics like elaborate ploys, feigned friendship, or financial inducements do not meet this high bar. The district court's exclusion of classified exculpatory evidence was upheld as permissible under evidentiary rules, finding it largely irrelevant prior act evidence or too confusing for the jury. Regarding statutory interpretation, the court ruled that 18 U.S.C. § 2332g explicitly criminalizes conspiracy to acquire and export SAMs, as indicated by its plain text and congressional purpose. It further clarified that a sting operation does not constitute 'authorized conduct' under § 2332g(a)(3), distinguishing it from money laundering statutes that require a specific 'sting provision' due to their unique element of actual tainted money. The jury instructions for § 2332g were deemed correct as they adequately conveyed both the intent to agree and the knowing purpose to acquire/export SAMs. Finally, the court, citing Holder v. Humanitarian Law Project, affirmed that 18 U.S.C. § 2339B (material support to terrorism) does not require the government to prove a defendant intended for their aid to further specifically terrorist activities, only that they knew the organization was a designated terrorist group and knowingly provided support. The court found sufficient evidence to support all convictions.
Analysis:
This case significantly reinforces the broad reach of U.S. federal criminal jurisdiction, particularly in counter-terrorism and arms trafficking cases, by affirming the extraterritorial application of several key statutes. It clarifies that sophisticated sting operations, even those involving foreign nationals acting entirely abroad, do not constitute 'manufactured jurisdiction' or 'outrageous government conduct' if the defendants demonstrate predisposition and the conduct targets U.S. interests. The decision also confirms the interpretation of material support for terrorism statutes (18 U.S.C. § 2339B), aligning with Holder v. Humanitarian Law Project in rejecting a specific intent requirement to further terrorist acts, thus lowering the prosecutorial burden in such cases. It further clarifies that sting operations are a legitimate enforcement technique for statutes like 18 U.S.C. § 2332g, even without an explicit 'sting provision,' unless the statute specifically creates a legal element that the government's actions would negate.
