United States v. Khatallah

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UNITED STATES OF AMERICA v. AHMED SALIM FARAJ ABU KHATALLAH, also known as “Ahmed Abu Khatallah,” also known as “Ahmed Mukatallah,” also known as “Ahmed Bukatallah,” also known as “Sheik,” Defendant.

No. 14-cr-00141 (CRC)

United States District Court, District of Columbia

August 29, 2024

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.

Ahmed Salim Faraj Abu Khatallah was tried and convicted of several counts related to his involvement in the September 2012 attack on a United States diplomatic compound in Benghazi Libya. The Court sentenced Khatallah to 22 years of imprisonment in June 2018. On appeal, the D.C. Circuit upheld the convictions but reversed the sentence on the ground that the Court did not adequately justify its downward departure from the Sentencing Guideline's recommendation. The case was thus remanded for resentencing, which will take place next month.

Ahead of that resentencing, the government has moved to present two new categories of evidence that were not introduced at trial or the original sentencing: (1) cellular site information ostensibly capturing Khatallah's location the night of the attack; and (2) testimony recounting statements made to the Federal Bureau of Investigation (“FBI”) by a witness detained in Libya implicating Khatallah in the deadly assault. The Court will deny this request for a second bite at the apple for three reasons. First, under existing D.C Circuit precedent, the government cannot introduce new evidence at resentencing on factual issues that were fully aired at the first sentencing. Second, even if the government is justified in advocating for a yet unrecognized exception to this rule when the evidence could not have been discovered earlier with the exercise of due diligence, the government has not proven that this proposed exception would apply here. And third, even absent any procedural impediment, the late-breaking evidence would not alter the Court's sentencing calculus because it primarily involves acquitted conduct and, even then, the Libyan witness's proffered statements raise numerous reliability concerns.

I. Background

In June 2014, Khatallah was charged with 18 offenses related to the attacks on the U.S. Special Mission in Benghazi and a nearby intelligence facility known as the Annex. Broadly speaking, the government alleged that Khatallah, as a leader of an extremist militia called Ubaydah Bin Jarrah, directed the attacks because he objected to the United States' intelligence presence in Benghazi following the overthrow of former Libyan dictator Muammar Gaddafi.

Khatallah's trial began in early October 2017 and lasted seven weeks. Evidence at trial showed that, around 9:45 p.m. on September 11, 2012, dozens of armed men breached the main gate of the Special Mission compound that housed a contingent of State Department personnel and, that night, U.S Ambassador to Libya J. Christopher Stevens. The intruders fired at security forces and set blaze to Mission buildings. Ambassador Stevens and a State Department Foreign Service officer sought refuge in a safe room but later died of smoke inhalation while trying to escape the living quarters. Hours after the initial assault, militants used small arms, machine guns, rocket-propelled-grenade launchers, and mortars to attack the Annex about a mile away. Two State Department security officers were killed by the mortar fire at the Annex. Three other U.S. government personnel were seriously injured repelling the attackers before reinforcements arrived and transported the remaining American officers to safety in Tripoli.

After five days of deliberation, the jury convicted Khatallah of (1) providing material support and resources to terrorists, in violation of 18 U.S.C. § 2339A; (2) conspiring to do the same, also in violation of § 2339A; (3) maliciously destroying and injuring a federal building- namely, the Special Mission-where said building was a dwelling or where the life of a person was placed in jeopardy, in violation of 18 U.S.C. § 1363; and (4) carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). The jury acquitted Khatallah on the other fourteen charges. Among them were murder and attempted murder of the four U.S. personnel who died during the attacks, killing those four individuals during an attack on a federal facility, and damaging federal property by fire or explosives. The jury also declined to make certain special findings, including that Khatallah's provision of material support “resulted in death,” which would have increased his statutory maximum and minimum sentences. At sentencing on June 28, 2018, the Court calculated the Guidelines-recommended sentence as life plus ten years but varied downward to impose a 22-year term of imprisonment and five years of supervised release. The Court found this variance was warranted, in part, to avoid reliance on acquitted conduct.

Khatallah appealed his conviction, and the government cross-appealed the length of his sentence. The D.C. Circuit rejected Khatallah's challenges to the convictions but agreed with the government that the “sentence [was] substantively unreasonably low in light of the gravity of his crimes of terrorism,” holding that the Court's “decision to disregard conduct for which Khatallah was acquitted” did not, on the record presented, justify the downward departure. United States v. Khatallah, 41 F.4th 608, 617 (D.C. Cir. 2022). The Circuit accordingly remanded the case for resentencing, id., which the Court has scheduled for September 26, 2024.

Ahead of that hearing, the government has moved to introduce two forms of purportedly “new evidence” that it did not present at the original sentencing: (1) cellular site data that, it claims, establishes the location of Khatallah's cell phone during the first wave of the attack on the Mission and the subsequent siege of the Annex; and (2) information provided to the FBI in 2020 by an imprisoned Libyan national regarding Khatallah's alleged planning of and involvement in the attacks. See Mot. Resentence at 4 n.2; Proffer of Testimony. The latter evidence would be offered through testimony by an FBI agent who interviewed the witness. Khatallah objects to this request for “a second bite at the apple.” Def. Br., ECF No. 586, at 1. Under established D.C. Circuit precedent, he says, “the government may not at resentencing introduce evidence on factual issues that were already litigated (and on which it lost) at the original sentencing.” Id. The government retorts that the Court is not prohibited from considering this new evidence that “was not available at the original sentencing” despite the “exercise of due diligence.” Gov't Br., ECF No. 587, at 2.

After receiving the parties' briefs and holding a hearing on the matter, the Court directed the government to proffer the evidence concerning the FBI informant that it would present at resentencing and explain why, in its view, this evidence was undiscoverable before the original sentencing and why it is reliable. Having reviewed these materials, including a classified defense submission in response to the government's proffer, the Court will now resolve this dispute.

II. Analysis

The government's request to introduce this “new evidence” at Khatallah's resentencing fails three times over. First, under binding D.C. Circuit precedent, a party cannot introduce new evidence of old facts regarding issues that were fully litigated at the original sentencing. Second, even if the D.C. Circuit were to deviate from its existing caselaw and follow some sister circuits in recognizing an exception to this general prohibition when the new evidence could not have been uncovered prior to the first sentencing with the exercise of “due diligence,” the government has not carried its burden of establishing that the evidence it now proffers was truly unavailable the first go around. Third, even assuming the Court could consider this new evidence, it would not change the sentencing calculus because (1) the evidence is being used to prove acquitted conduct and (2) the proffered statements from the Libyan witness, which would not be subject to cross examination, lack sufficient indicia of reliability to be considered on matters that were central to Khatallah's trial. The Court will discuss each basis for refusing to permit this new evidence in turn.

A. D.C. Circuit Precedent

Under established D.C. Circuit precedent, a party may not introduce new evidence at resentencing that was relevant to and litigated at the initial sentencing (unless that evidence involves facts that postdate the first proceeding). But that is exactly what the government seeks to do here: proffer new evidence to prove old allegations regarding events that occurred years before Khatallah's sentencing in June 2018.

The D.C. Circuit has reiterated on multiple occasions that a remand for resentencing is not an open invitation for a complete do over. In United States v. Leonzo, for example, the Circuit had to “decide whether on remand the government may offer new evidence to support its claim of” a significant monetary loss caused by the defendant's default on a fraudulently obtained loan to prove that a sentencing enhancement was warranted. 50 F.3d 1086, 1088 (D.C. Cir. 1995). It answered no: The “government had the burdens of production and persuasion,” and the court saw “no reason why it should get a second bite at the apple” when “[n]o special circumstances justified, or even explained, the government's failure to sustain these burdens.” Id. The Circuit reaffirmed this restriction two years later in United States v. Whren while rejecting the practice of “de novo resentencing” adopted by several sister circuits. 111 F.3d 956, 959 (D.C....