UNITED STATES OF AMERICA v. AHMED ALAHMEDALABDALOKLAH

San Francisco, California criminal defense lawyer represented the Defendant charged with participating in a conspiracy that targeted U.S. military personnel and property in Iraq.

The panel affirmed in part and reversed in part the

conviction, after a jury trial, of Ahmed

Alahmedalabdaloklah (Oklah), a Syrian national, for

participating in a conspiracy that targeted U.S. military

personnel and property in Iraq.

Reversing in part, the panel agreed with the parties that

Oklah's convictions on Counts Three and Four, for

conspiring to possess a destructive device in furtherance of

a crime of violence and aiding and abetting the same, could

not stand after the Supreme Court's decision in United States

v. Davis, 139 S. Ct. 2319 (2019). On those counts, the panel

remanded with direction to the district court to vacate the

convictions.

The panel affirmed Oklah's convictions on Counts One

and Two, for conspiring to use a weapon of mass destruction,

in violation of 18 U.S.C. § 2332a, and conspiring to damage

U.S. Government property by means of an explosive, in

violation of 18 U.S.C. § 844(f) and (n).

As to Count Two, the panel held that 18 U.S.C. § 844(f)

and (n) applied to Oklah's extraterritorial conduct. The

panel held that the presumption against extraterritoriality

applies to criminal statutes as well as to civil

statutes. Reconciling United States v. Bowman, 260 U.S. 94

(1922) (whether a criminal statute has extraterritorial reach

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. ALAHMEDALABDALOKLAH 3

depends on the nature of the criminalized conduct and the

interests the statute protects), with Morrison v. Nat'l Austl.

Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v.

European Cmty., 579 U.S. 325 (2016) (setting forth a twostep test for determining whether a statute applies

extraterritorially), the panel held that a criminal statute

applies extraterritorially when (1) a federal criminal offense

directly harms the U.S. Government, and (2) enough

foreseeable overseas applications existed at the time of the

statute's enactment to warrant the inference that Congress

both contemplated and authorized prosecutions for

extraterritorial acts. The panel concluded that the text and

context of § 844(f) and (n) provide a clear indication that

they apply extraterritorially, including to Oklah, a foreign

national. Accordingly, the presumption against

extraterritoriality was rebutted.

The panel held that, during pretrial discovery, the district

court properly exercised its discretion in granting the

Government's motions to use the processes set forth in the

Classified Information Procedures Act (CIPA) to withhold

or "substitute” classified information from discovery. As

recognized by Oklah, precedent foreclosed his argument that

his constitutional rights were violated because he and his

counsel were not present at several CIPA hearings and

because his counsel was prohibited from sharing or

discussing certain "Secret”-level documents with

him. Having placed itself in defense counsels' shoes and

examined the classified records in full, the panel concluded

that the district court did not abuse its discretion in its CIPA

rulings, and the panel confirmed that the withheld classified

materials were either not discoverable, or were not relevant

and helpful to Oklah's defense. The panel held that the

district court also did not abuse its discretion by authorizing

4 USA V. ALAHMEDALABDALOKLAH

the Government to turn over substitution statements to the

defense in lieu of other discovery.

The panel concluded, however, that several of the

Government's supporting declarations were insufficient to

sustain its invocation of the state-secrets privilege because

this privilege requires formal invocation, either by the head

of the department that has control over the matter or by a

minister who is the political head of the department. The

panel excused the Government's failure to comply with the

formal invocation requirement in this case because it would

be of little or no benefit to remand for the purpose of having

the department head agree that the disclosure of the

classified information would pose a risk to national security.

The panel held that the use at trial of the overseas

deposition testimony of Jamal Al-Dhari about Oklah's

connection to the Iraqi Revolution Brigades did not violate

Oklah's rights under the Confrontation Clause; the Supreme

Court's rulings in Brady v. Maryland, 373 U.S. 83 (1963),

Giglio v. United States, 405 U.S. 150 (1972), and Napue v.

Illinois, 360 U.S. 264 (1959); or the rule against the

admission of hearsay evidence.

The panel held that the district court properly excluded,

as hearsay, emails between FBI Special Agent Whitson and

Al-Dhari.

The panel held that the district court properly admitted

the testimony of Christopher Graham and refused to grant a

mistrial or to strike Graham's expert testimony on the

Government's physical evidence.

The panel held that the Government's failure to produce

James Dempsey, a Department of Defense-affiliated

USA V. ALAHMEDALABDALOKLAH 5

witness, at trial did not violate Oklah's constitutional rights

to due and compulsory process.

The panel held that the district court's refusal to order

the Government to search the entire Department of Defense

for relevant documents was not error under Brady, which

requires the Government to produce to the defense

exculpatory or impeaching evidence in the prosecutor's

possession.

The panel held that remand for resentencing was

warranted because the parties agreed that the convictions on

Counts Three and Four must be vacated, but the panel

rejected Oklah's argument that the case should be reassigned

to a different district judge on remand.

COUNSEL

Molly A. Karlin (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Federal

Public Defender's Office, Phoenix, Arizona; Michael

Tanaka, Law Office of Michael Tanaka, Los Angeles,

California; for Defendant-Appellant.

Jeffrey M. Smith (argued), Appellate Counsel; Matthew G.

Olsen, Assistant Attorney General for National Security;

Gary M. Restaino, United States Attorney; National Security

Division, United States Department of Justice, Washington,

D.C.; David A. Pimsner and Bill C. Solomon, Assistant

United States Attorneys; Krissa M. Lanham, Appellate

Division Chief; United States Attorney's Office, Phoenix,

Arizona; for Plaintiff-Appellee.

6 USA V. ALAHMEDALABDALOKLAH

Samuel Macomber, Federal Defender Services of Idaho,

Boise, Idaho, for Amici Curiae Ninth Circuit Public and

Community Defenders.

Aamra Ahmad, American Civil Liberties Union Foundation,

Washington, D.C.; Sara Robinson, Patrick Toomey, Ashley

Gorski, and Molly Kovel, American Civil Liberties Union

Foundation, New York, New York; Jared Keenan, American

Civil Liberties Union Foundation of Arizona; for Amici

Curiae American Civil Liberties Union and American Civil

Liberties Union of Arizona.

OPINION

CHRISTEN, Circuit Judge:

Ahmed Alahmedalabdaloklah (Oklah), a Syrian

national, appeals his conviction after a jury trial for

participating in a conspiracy that targeted U.S. military

personnel and property in Iraq.1 The Government alleged

that Oklah applied his technical expertise to develop,

manufacture, and supply electronic components for

improvised explosive devices (IEDs) that a non-state

militant group used against the U.S. military. The

Government's evidence included videotaped testimony from

overseas depositions; emails exchanged among alleged coconspirators; physical evidence collected from a facility

apparently used to assemble electronic components and

manufacture IEDs in Baghdad, including physical evidence

1 The defendant has been known by many aliases, but counsel

represented that her client goes by "Oklah.” Hence, we use "Oklah”

throughout this opinion.

USA V. ALAHMEDALABDALOKLAH 7

bearing the defendant's fingerprints; and expert testimony

from electrical engineers with specialized military training.

The jury delivered a mixed verdict on the six-count

indictment. It convicted Oklah for conspiring to use a

weapon of mass destruction (Count One), conspiring to

damage U.S. government property (Count Two), and

conspiring to possess a destructive device in furtherance of

a crime of violence and aiding and abetting the same (Counts

Three and Four). The jury acquitted Oklah of conspiring to

murder Americans (Count Five) and providing material

support to terrorists (Count Six).

We agree with the parties that the convictions based on

crime-of-violence conspiracy (Counts Three and Four)

cannot stand after the Supreme Court's decision in United

States v. Davis, 139 S. Ct. 2319 (2019), and on those counts

we remand with direction to the district court to vacate the

convictions. Even reviewing the record cumulatively, this is

the only error that warrants remand. This opinion addresses

Oklah's remaining convictions for Counts One and Two:

conspiracy to use a weapon of mass destruction and

conspiracy to damage or destroy U.S. government property.

We affirm the convictions on Counts One and Two, reverse

the convictions on Counts Three and Four, and remand to the

district court for resentencing.2

2 On remand, the district court is also directed to modify the judgment to

reflect the correct statute of conviction for Count One, 18 U.S.C

§ 2332a(a)(1). The original judgment contains a typographical error and

mistakenly reflects a conviction for 18 U.S.C § 2332(a)(1).

8 USA V. ALAHMEDALABDALOKLAH

Background

I. Arrest and Extradition

The Government alleged that, between January 2005 and

July 2010, Oklah was conspired with the 1920s Revolution

Brigades, an insurgent group in Iraq that aimed to drive

American military forces out of that country. Among other

things, the Brigades allegedly planted IEDs that damaged

property owned by the U.S. military and killed or injured

American troops. According to the indictment, Oklah

designed or created remote detonator switches for the IEDs.

The Government presented extensive evidence that Oklah's

fingerprints, personal identification documents, and other

incriminating evidence were found at a location in Baghdad

that served as a site for manufacturing IEDs. In 2006, Oklah

left Iraq and moved to China. The Government alleged that,

from there, Oklah continued to design and assist with the

manufacture of IEDs until the Chinese government expelled

him in 2010. At that point, Oklah traveled from China to

Turkey, where he was arrested and eventually extradited to

the United States.

Oklah was charged in the District of Arizona with six

counts:

• Count One, conspiracy to use a weapon of mass

destruction, in violation of 18 U.S.C. § 2332a(a)(1)

and (3);

• Count Two, conspiracy to maliciously damage or

destroy United States government property by

means of an explosive, in violation of 18 U.S.C.

§ 844(f)(1), (2), and (n);

USA V. ALAHMEDALABDALOKLAH 9

• Count Three, aiding and abetting possession of a

destructive device in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A),

(B)(ii), and (2);

• Count Four, conspiracy to possess a destructive

device in furtherance of a crime of violence, in

violation of 18 U.S.C. § 924(o);

• Count Five, conspiracy to commit extraterritorial

murder of a U.S. national, in violation of 18 U.S.C.

§ 2332(b)(2); and

• Count Six, providing material support to terrorists,

in violation of 18 U.S.C. § 2339A.

II. Trial Evidence

Oklah's jury trial lasted for almost seven weeks,

beginning on January 30, 2018, and continuing through

March 16, 2018.

A. The Government's Case

An important and mostly undisputed aspect of the

Government's case explained the history and activities of the

1920s Revolution Brigades, a group named after a 1920 Iraqi

uprising in which tribal leader Suleiman Al-Dhari

assassinated a British military officer. The modern iteration

of the Brigades arose after the 2003 Iraq War. Its aim was

to drive the U.S. military out of Iraq and to challenge the

newly formed (and U.S.-supported) Iraqi government.

Harith Al-Dhari (Harith) led the group until he was killed by

Al-Qaeda in 2007.

A government witness testified that the Brigades differed

from other insurgent groups because of their "laser like focus

10 USA V. ALAHMEDALABDALOKLAH

on expelling the Americans.” The group's tactics included

using IEDs that were detonated remotely as military vehicles

passed by. The Government presented significant evidence

about the transmitters and dual-tone multifrequency

(DTMF) circuit boards that were used to trigger explosions.

The Government's experts testified that, at some point, the

Brigades split into factions, and some of them worked and

operated in conjunction with the U.S. military, but the

faction working with the U.S. military against Al-Qaeda did

not use IEDs.

The Government argued that Oklah used his engineering

expertise to create sophisticated IED components that the

Brigades employed in their attacks against American forces

in Iraq. To prove Oklah's connection to the IED-related

activity, the Government introduced forensic evidence

collected from what it characterized as one of the largest IED

manufacturing facilities ever discovered in Iraq. Evidence

tying Oklah to the Brigades' IED bombings was critical

because Counts One and Two are both conspiracy charges.

To tie Oklah to the Brigades, the Government relied on

overseas deposition testimony from Harith's cousin Jamal

Al-Dhari (Al-Dhari) and Muhammad Ali-Ways, the son-inlaw of another Brigades leader, Abu Ghassan. The

Government also introduced electronic communications that

Oklah exchanged with Al-Dhari and Ali-Ways, and evidence

of Oklah's fingerprints on IED components of the same type

the Brigades used in their IEDs. The emails and testimony

connected Oklah not only to Al-Dhari and Ali-Ways, but

also to Brigades military leaders Harith and Abu Ghassan.

The Government argued that, while Oklah may have

operated a legitimate electronics business as he claimed, he

also sent IED components from China to Harith, to Abu

USA V. ALAHMEDALABDALOKLAH 11

Ghassan, and to other Brigades members in furtherance of

the Brigades' campaign to drive Americans out of Iraq.

Al-Dhari, an Iraqi, moved to Lebanon in approximately

2005. When asked about the Brigades in the Government's

case-in-chief, he readily affiliated himself with the group.

He testified that his grandfather was the leader of the original

Brigades and confirmed that the Brigades' "primary goal”

was to "resist the American occupation” by "doing military

operations.” Al-Dhari admitted that he personally provided

support for the medical, financial, logistical, and travel needs

of Brigades members. According to Al-Dhari, on at least

one occasion he provided financial assistance for Abu

Ghassan, a Brigades member who had "knowledge and

experience in . . . exploding devices and rockets.” Al-Dhari

admitted in his testimony that he provided support for the

Brigades inside and outside Iraq, but as discussed in

additional detail below, Al-Dhari was equivocal when

Government counsel asked him to describe his specific role

and membership in the Brigades. Despite equivocal

responses on these points, the Government ultimately

acknowledged that Al-Dhari maintained a leadership

position in the Brigades and had a military, political, and

religious role in the group.

Al-Dhari identified Oklah as "Mukhtar” in his

testimony, explaining that Al-Dhari's cousin, Harith, had

introduced Oklah to him using that name. Al-Dhari

described Oklah's work creating IED components for the

Brigades, but the parties strongly dispute whether Al-Dhari

had personal knowledge of Oklah's activities because AlDhari attributed some of his knowledge about "Mukhtar” to

second-hand information he received from Harith. Al-Dhari

testified that Harith told him that Oklah was helping the

Brigades in the "technology aspect” with IEDs used against

12 USA V. ALAHMEDALABDALOKLAH

the American forces. Al-Dhari went on to testify that

"Mukhtar” created remote controls for the IEDs, improved

the devices, and helped thwart American countermeasures.

When Government counsel asked Al-Dhari whether he had

any conversations with Oklah about the IEDs, Al-Dhari

responded that he did not understand the technology, but he

knew "through general conversation with Harith that

[Oklah] was helping in this matter.”

The evidence showed that Al-Dhari had met Oklah in

person, but the two communicated primarily by telephone

and email. According to Al-Dhari's testimony, their

correspondence stretched from about 2004 to about 2009 or

2010. The Government used Al-Dhari to introduce several

emails showing that Al-Dhari provided logistical support for

Oklah and Brigades members and communicated with Oklah

about "the resistance” and shipments of IED parts. For

example, in November 2008, Oklah emailed Al-Dhari about

how to ensure that their cell phone communications were

"protected from spying” when they discussed "the

resistance.” That same month, Oklah sent Al-Dhari an email

indicating that he was sending 10 transmitters and 100

receivers from China to the Brigades. Al-Dhari explained

that "the resistance w[as] in need for those devices, and they

used to use them with bombs . . . to explode them through

remote controls.” He also testified about the significance of

the ratio between transmitters and receivers, explaining,

"[W]e don't need a lot of those transmitters but we will need

more [of] those receivers . . . because those receivers, they

get damaged with the bombs.” Al-Dhari told the jury that

his email communications with Oklah contained minimal

detail because they "were talking about concerns or things

that have to do with the Iraqi resistance against the

USA V. ALAHMEDALABDALOKLAH 13

Americans” and they did not want others involved to be

caught.

On cross-examination, the defense sought to impeach

Al-Dhari and to show that he had a pro-prosecution bias. AlDhari acknowledged that he was testifying about his and

Oklah's shared involvement in "conspiracy crimes,” but also

testified that he believed that neither Oklah nor the Brigades

committed any crime because "this is a right for anybody or

any side to resist an invasion or occupation to their country.”

Al-Dhari testified that he received no promises or benefits

from the U.S. government in exchange for his testimony, and

he disputed that he had a "friendly” relationship with FBI

Special Agent Stewart Whitson. Specifically, Al-Dhari

denied receiving assistance obtaining a visa to travel to the

United States, and he claimed that he alone bore the planning

and financial burdens involved in that travel. Defense

counsel also questioned Al-Dhari about his nongovernmental organization (NGO), which conducted

lobbying activities. On re-direct examination, Al-Dhari

admitted that he visited members of Congress after receiving

an invitation from the Chair of the House Committee on

Foreign Affairs.

Ali-Ways was the second witness who tied Oklah

directly to the Brigades. Ali-Ways denied being a member

of the Brigades himself, but he testified that he supported the

Brigades and their goal of driving the Americans out of Iraq

using IEDs. Ali-Ways testified that his father-in-law,

Brigades member Abu Ghassan, was detained by U.S. forces

after others turned him in for his involvement in the

Brigades' activities. Ali-Ways testified that while Abu

Ghassan was in prison, he saw Oklah, known to Ali-Ways as

"Engineer Diya,” in the family's village. Ali-Ways testified

that Oklah asked him and other villagers about who would

14 USA V. ALAHMEDALABDALOKLAH

replace Abu Ghassan while he was in jail. The villagers

informed Oklah that Abu Ghassan's brother, Hamdan

Ibrahim Hamdan, would take Abu Ghassan's place in the

Brigades. Several weeks later, Ali-Ways saw Oklah present

Hamdan and others with a "gray-colored box.” Ali-Ways

testified that Oklah told him that the box could be used for

explosions.

At trial, the jury saw Ali-Ways identify Oklah as

"Engineer Diya” in a photograph shown to him during the

course of his testimony. Then, after the Government showed

Ali-Ways a second photo from his own laptop, Ali-Ways

identified the individual in the laptop photo as his "friend,”

"Lieutenant Ahmed.” Asked to compare the laptop photo to

the photograph of "Engineer Diya” (i.e., Oklah), Ali-Ways

said he could not tell for sure whether the photo on his laptop

was of Oklah or of Lieutenant Ahmed because "they look

like each other.” Defense counsel argued in closing that AliWays' earlier testimony identifying Oklah was not credible

because "[h]is testimony [wa]s, at best, confused.”

Ali-Ways also testified about exchanging emails with

Oklah. In these emails, Oklah sent "instruction[s] about

electronic matters” and DTMF boards, and the two men

discussed orders for components, such as transmitters and

receivers, that Oklah sent to Iraq. Ali-Ways recounted

Oklah's shipments of IED component parts for Abu Ghassan

and recalled Oklah indicating that he was sending the DTMF

boards and electronic components for the Brigades. The

defense declined to cross-examine Ali-Ways.

The Government's physical evidence came from two

U.S. military raids in Baghdad. In August 2006, military

personnel, including James Dempsey, raided a third-floor

facility at 50 Omar Street in Baghdad (Omar), where they

USA V. ALAHMEDALABDALOKLAH 15

discovered materials, tools, and components (including

DTMF circuit boards) that were consistent with remotecontrolled IED manufacturing on site. Investigators found

Oklah's fingerprints on many of these items, including tape

on a device that one expert witness described as a completed

IED switch, a document describing how to use a cell phone

to detonate an explosive device, and tape on a Scanlock 2000

bug detector that can be used to test IED

controllers. Investigators also found identification

documents at Omar bearing Oklah's photo and fingerprints.

A second raid took place in December 2007 at a house in

the Amiriya neighborhood of Baghdad (Amiriya). There,

American military personnel found explosives, boxes,

radios, triggers, circuits, and tools hidden behind a

wall. Investigators identified Oklah's fingerprint inside a

box at the Amiriya site, and the box contained a DTMF

circuit board. Trial witnesses described that American

soldiers delivered the evidence garnered from both raids to

the Combined Explosive Exploitation Cell (CEXC), a

Department of Defense (DoD) laboratory located at the U.S.

military base in Baghdad, where investigators classified,

examined, and analyzed the evidence. Ultimately,

investigators sent the evidence to the Terrorist Explosive

Device Analytical Center (TEDAC) in the United States,

where FBI engineers further analyzed the evidence and

generated many "TEDAC reports” outlining their

findings. The Government's explosives expert, Christopher

Graham, testified over several days of the trial. He explained

the evidence found at the Omar and Amiriya sites and

testified that, in his opinion, Omar was an "IED switch

factory” and that certain characteristics of the electronic

components found at the site indicated that they were

intended to be used for IEDs.

16 USA V. ALAHMEDALABDALOKLAH

B. Oklah's Defense

The defense argued at trial that Oklah ran a legitimate

electronics business in Iraq before he moved to China and

that he continued his business from there. The defense

narrative was that Oklah is a Syrian national, not an Iraqi;

that he had no anti-American motivation; and that he did not

stand to benefit from the Brigades' goal of driving the

Americans out of Iraq. The defense emphasized the

Government's high burden of proof and worked to cast

doubt on the Government's evidence.

First, the defense attacked Al-Dhari's credibility,

arguing that he was motivated to testify on the Government's

behalf to curry favor and obtain benefits. The defense argued

that Al-Dhari's testimony was unreliable because it was

based on Harith's second-hand statements and because AlDhari lacked personal knowledge of Oklah's activities. The

defense called Joel Rubin, an agent for Al-Dhari's NGO and

advocacy group, the Iraqi National Project, to testify. Rubin

had arranged for Al-Dhari to meet personally with members

of Congress "that have the most thorough jurisdiction over

Iraq policy,” and he testified that Al-Dhari traveled to

Washington, D.C., in the months leading up to trial to lobby

lawmakers concerning the peace and reconciliation

movement in Iraq.

To impeach Al-Dhari's testimony, Oklah also called FBI

Special Agent Whitson, the Government's primary point of

contact with Al-Dhari in the pretrial period. Defense counsel

questioned Whitson about the ingratiating tone of emails he

exchanged with Al-Dhari, in which Whitson offered to help

Al-Dhari obtain a Latvian visa,3 called Al-Dhari a "friend,”

3 The FBI conducted its initial interview of Al-Dhari in Latvia.

USA V. ALAHMEDALABDALOKLAH 17

and provided his telephone number for Al-Dhari to give to a

border official if he had any problems at the border. The

defense also examined Whitson about whether he attempted

to have Al-Dhari removed from the "no-fly list” or otherwise

helped facilitate Al-Dhari's travel to the United States.

Oklah argued to the jury that the Government was wrong

about the Brigades' goals and that, because portions of the

Brigades were working with American forces, the

Government could not prove that Oklah targeted Americans

merely by connecting him to the Brigades. Among other

witnesses, Oklah called retired U.S. Marine Corps Colonel

Joseph L'Etoile, who worked with the Pentagon's Close

Combat Lethality Task Force and had previously been

deployed to Iraq. L'Etoile testified that he had six meetings

with individuals who were "representing themselves” as

Brigades leaders and that, after the meetings, attacks on U.S.

soldiers declined and purported Brigades members

participated in military operations against Al-Qaeda.4

Oklah sought to characterize the Government's

investigation as sloppy and its evidence as innocuous. The

defense called expert Donald Hansen to testify that the

military's collection of evidence was "haphazard” and that

there was insufficient record of its chain of custody to show

that the Government's evidence actually came from Omar.

Finally, the defense called several witnesses to testify that

the electronics components found at Omar are sold at

markets in Baghdad and that the DTMF circuit boards seized

from Omar were commercially manufactured or otherwise

not suitable for IED use.

4 On cross-examination, L'Etoile testified that these individuals

supporting the coalition were not permitted to use IEDs.

18 USA V. ALAHMEDALABDALOKLAH

C. Jury Deliberations and Verdict

The jury deliberated for almost two days and asked the

court nine questions during its deliberations. On March 16,

the jury convicted Oklah on Counts One, Two, Three, and

Four, and acquitted him on Counts Five and Six. On

November 7, 2018, the district court sentenced Oklah to life

imprisonment on Counts One and Four, to run concurrently;

240 months on Count Two, to run concurrently with the

sentences on Counts One and Four; and 360 months on

Count Three, to run consecutively to the life sentences.

Oklah timely appealed.

Discussion

I. Extraterritoriality

Count Two charged Oklah with conspiracy to

maliciously damage or destroy U.S. government property by

means of an explosive, in violation of 18 U.S.C. § 844(f) and

(n). In the district court, Oklah moved pretrial to dismiss

Count Two, arguing that § 844(f) and (n) cannot apply to the

extraterritorial conduct charged in the indictment. The

district court denied the motion, and Oklah argues on appeal

that the district court erred.

A. The Presumption Against Extraterritoriality

We review de novo whether a statute applies

extraterritorially, United States v. Hussain, 972 F.3d 1138,

1142 (9th Cir. 2020), and apply a two-step test, see RJR

Nabisco, Inc. v. European Cmty., 579 U.S. 325, 337 (2016).

At Step One, we presume that a statute applies only

domestically and ask "whether 'Congress has affirmatively

and unmistakably instructed that' the provision at issue

should 'apply to foreign conduct.'” Abitron Austria GmbH

v. Hetronic Int'l., Inc., No. 21-1043, 2023 WL 4239255, at

USA V. ALAHMEDALABDALOKLAH 19

*4 (U.S. June 29, 2023) (quoting RJR Nabisco, 579 U.S. at

335, 337). If that indication is present, the statute applies

abroad and the extraterritoriality analysis ends. See id.; RJR

Nabisco, 579 U.S. at 337. If an affirmative indication is

absent, the statute applies only domestically and we proceed

to Step Two, where we ask whether "the conduct relevant to

the statute's focus occurred in the United States.” Nestlé

USA, Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (quoting RJR

Nabisco, 579 U.S. at 337). If the relevant conduct occurred

in the United States, "the case involves a permissible

domestic application even if other conduct occurred abroad.”

Id. (quoting RJR Nabisco, 579 U.S. at 337).

The presumption against extraterritoriality is a "canon of

construction,” not "a limit upon Congress's power to

legislate.” Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247,

255 (2010). The Supreme Court has cautioned that we must

not ask "whether we think Congress would have wanted a

statute to apply to foreign conduct if it had thought of the

situation before the court,” but should instead ask "whether

the statute gives a clear, affirmative indication” that rebuts

the presumption against extraterritoriality. RJR Nabisco,

579 U.S. at 335, 337.

Morrison, RJR Nabisco, Nestlé, and Abitron were civil

cases. The Supreme Court has yet to apply the two-step

framework to a criminal case. The Government reads our

decisions in United States v. Felix-Gutierrez, 940 F.2d 1200

(9th Cir. 1991); United States v. Vasquez-Velasco, 15 F.3d

833 (9th Cir. 1994); and United States v. Corey, 232 F.3d

1166 (9th Cir. 2000), as establishing that the "territorial

presumption does not govern the interpretation of criminal

statutes that, by their nature, implicate the legitimate

interests of the United States abroad.” The Government also

takes this argument one step further, citing the Seventh

20 USA V. ALAHMEDALABDALOKLAH

Circuit's decision in United States v. Leija-Sanchez, 820

F.3d 899 (7th Cir. 2016), to suggest that RJR Nabisco's twostep framework does not apply to any criminal statute. We

agree that some of our older case law could be read to

suggest that the presumption against extraterritoriality does

not apply to criminal statutes. But the Supreme Court has

more recently suggested that the presumption applies "in all

cases” without qualification. Morrison, 561 U.S. at 261.

And in dicta, the Court has implied that the presumption

applies to criminal statutes. See Bond v. United States, 572

U.S. 844, 857 (2014).

After RJR Nabisco, we have applied its two-step

framework to the criminal statutes at issue in Hussain, 972

F.3d at 1142–43 (using the RJR Nabisco framework to

determine whether wire fraud crimes had a domestic focus);

United States v. Perez, 962 F.3d 420, 439–41, 439 n.5 (9th

Cir. 2020) (interpreting the Violent Crimes in Aid of

Racketeering statute under the RJR Nabisco framework);

and United States v. Ubaldo, 859 F.3d 690, 700 (9th Cir.

2017) (applying RJR Nabisco's two-step test to statutes

criminalizing weapons smuggling). This precedent

forecloses the Government's suggestion that the

presumption does not apply to criminal statutes.

A "clear, affirmative indication” of extraterritorial

application does not require an "express statement of

extraterritoriality.” RJR Nabisco, 579 U.S. at 339–40; see

Morrison, 561 U.S. at 256 ("[W]e do not say . . . that the

presumption against extraterritoriality is a 'clear statement

rule.'” (citation omitted)). The indication may be

demonstrated by context. RJR Nabisco, 579 U.S. at 340. For

example, the arms-smuggling statutes at issue in Ubaldo

contained no explicit statement that they applied abroad, see

18 U.S.C. § 992(l); 22 U.S.C. § 2778(b)(2), but we

USA V. ALAHMEDALABDALOKLAH 21

considered the nature of the criminalized conduct—

"illegally importing weapons into the United States”— and

legislative history establishing congressional intent "to

capture conduct occurring outside the United States.”

Ubaldo, 859 F.3d at 700–01. Ubaldo quoted two House

Reports declaring that the weapons-smuggling statutes

involved in that case "shall be administered in a manner

which will carry out [a] policy” to "exert leadership in the

world community to bring about arrangements for reducing

the international trade in implements of war” and "to

strengthen Federal controls over interstate and foreign

commerce in firearms.” Id. at 701 (first quoting H.R. Rep.

No. 94-1144, at 23 (1976), and then quoting H.R. Rep. No.

90-1577, at 6 (1968)). Ubaldo reasoned, "The fact that

illegally importing weapons into the United States almost

always requires some conduct in a foreign country

distinguishes it from most other crimes” and concluded the

presumption against extraterritoriality had been rebutted by

the statute's text and legislative history. Id. at 700–01.

Part of the context we consider in Oklah's case is the

Supreme Court's opinion in United States v. Bowman, a

decision that has informed our jurisprudence in this area for

over a century. 260 U.S. 94 (1922). In Bowman, three

American citizens and one British national entered into a

conspiracy while aboard the steamship Dio as it approached

a port in Brazil. Id. at 95. The U.S. government owned the

steamship, but it was operated by the National Shipping

Corporation on behalf of the Emergency Fleet Corporation,

an entity also wholly owned by the United States. Id. The

defendants were charged with conspiring to defraud the

Emergency Fleet Corporation by presenting an invoice for

1,000 tons of fuel oil, but onboarding only 600 tons and

pocketing the payment for the undelivered 400 tons. Id. at

22 USA V. ALAHMEDALABDALOKLAH

95–96. The statute under which they were charged

criminalized making, and conspiring to make, a false or

fraudulent claim against "any corporation in which the

United States of America is a stockholder.” Id. at 100 n.1

(quoting Act of October 23, 1918, Pub. L. No. 65-228, 40

Stat. 1015, 1015 (1918) (codified as amended at 18 U.S.C.

§ 287)). The Bowman defendants argued that the statute did

not apply to their extraterritorial conduct because it was

silent as to its extraterritorial effect and because neither party

disputed that the charged conduct occurred on the high seas.

Id. at 96–97.

Bowman explained that whether a statute is given

extraterritorial application is a "question of statutory

construction”:

The necessary locus, when not specially

defined, depends upon the purpose of

Congress as evinced by the description and

nature of the crime and upon the territorial

limitations upon the power and jurisdiction of

a government to punish crime under the law

of nations. Crimes against private

individuals or their property . . . must, of

course, be committed within the territorial

jurisdiction of the government where it may

properly exercise it. If punishment of them is

to be extended to include those committed

outside of the strict territorial jurisdiction, it

is natural for Congress to say so in the

statute, and failure to do so will negative the

purpose of Congress in this regard. . . .

But the same rule of interpretation should

not be applied to criminal statutes [that] . . .

USA V. ALAHMEDALABDALOKLAH 23

are enacted because of the right of the

government to defend itself against

obstruction, or fraud wherever perpetrated,

especially if committed by its own citizens,

officers, or agents. Some such offenses . . .

are such that to limit their locus to the strictly

territorial jurisdiction would be greatly to

curtail the scope and usefulness of the statute

and leave open a large immunity for frauds as

easily committed by citizens on the high seas

and in foreign countries as at home. In such

cases, Congress has not thought it necessary

to make specific provision in the law that the

locus shall include the high seas and foreign

countries, but allows it to be inferred from the

nature of the offense.

Id. at 97–98 (emphases added).5

The Bowman Court provided a list of examples of

statutes that, by their nature, would be "greatly . . .

curtail[ed]” in "scope and usefulness” and "leave open a

large immunity” if they could not be applied abroad. Id.

Notably, the examples provided in Bowman are statutes that

criminalize conduct that implicates the right of the

government to defend itself against obstruction and that is

likely to occur overseas: (1) "knowingly certify[ing] a false

5 Because the British defendant in Bowman was never apprehended, the

Bowman Court was not required to, and declined to, decide whether

charging a foreign national for offenses committed abroad was consistent

with the "law of nations.” Bowman, 260 U.S. at 96, 98, 102–03. As we

explain below, international law now answers that question in the

affirmative. See Vasquez-Velasco, 15 F.3d at 841; Felix-Gutierrez, 940

F.2d at 1205–06.

24 USA V. ALAHMEDALABDALOKLAH

invoice [while acting as a U.S. consul]”; (2) "[f]orging or

altering ship's papers”; (3) "enticing desertions from the

naval service”; (4) "bribing a United States officer of the

civil, military or naval service”; (5) "defraud[ing] . . . the

United States or any captor or claimant [of prize property]”;

and (6) "steal[ing] . . . property of the United States . . . to be

used for military or naval service.” Id. at 99–100. The Court

noted that all six examples appeared in a chapter of the

Criminal Code entitled "Offenses against the Operation of

the Government.” Id. at 98–99.

For decades, our court has read Bowman to say that

whether a statute has extraterritorial reach depends on the

nature of the criminalized conduct and the interests that the

statute protects. See, e.g., Vasquez-Velasco, 15 F.3d at 839

("Where '[t]he locus of the conduct is not relevant to the end

sought by the enactment' of the statute, and the statute

prohibits conduct that obstructs the functioning of the United

States government, it is reasonable to infer congressional

intent to reach crimes committed abroad.” (alteration in

original) (emphasis omitted) (quoting United States v.

Cotten, 471 F.2d 744, 751 (9th Cir. 1973))). More

specifically, Bowman suggests that offenses against private

parties or their property primarily "affect the peace and good

order of the community” and must be committed within the

territorial jurisdiction of the United States. Bowman, 260

U.S. at 98. For this type of statute, Congress must expressly

state that it applies overseas. Bowman teaches that the same

is not true for crimes that are not "logically dependent” on

their locality, and are instead "enacted because of the right

of the government to defend itself against obstruction, or

fraud wherever perpetrated, especially if committed by its

own citizens, officers, or agents.” Id.

USA V. ALAHMEDALABDALOKLAH 25

Brulay v. United States, 383 F.2d 345 (9th Cir. 1967),

illustrates our court's interpretation of Bowman's rule.

There, we applied Bowman to conclude that a drugsmuggling statute applied outside the United States because

"smuggling by its very nature involves foreign countries,

and . . . always requires some action in a foreign country.”

Id. at 350 (citing Bowman, 260 U.S. at 98). Ubaldo quoted

this passage when it held, after the two-step rule from RJR

Nabisco had been announced, that weapons-smuggling

statutes apply extraterritorially. See Ubaldo, 859 F.3d at

700–01 (quoting Brulay, 383 F.2d at 350). Stegeman v.

United States, 425 F.2d 984 (9th Cir. 1970) (en banc),

provides another example. There, we reasoned that a statute

prohibiting concealment of assets from a bankruptcy trustee

applies extraterritorially because to conclude otherwise

would "frustrate the statute's purpose by creating an obvious

and readily available means of evasion.” Id. at 986. In

United States v. Walczak, we applied Bowman to conclude

that 18 U.S.C. § 1001, which criminalizes false statements

to federal government officials, applied to false statements

made on a customs declaration completed abroad. 783 F.2d

854 (9th Cir. 1986) (per curiam). Finally, our decision in

Felix-Gutierrez concluded, based on Bowman, that statutes

prohibiting kidnapping and murder of federal officers and

employees apply to extraterritorial conduct. 940 F.2d at

1204.6

6 The Government also cites United States v. Kazzaz, 592 F. App'x 553

(9th Cir. 2014), an unpublished decision that post-dates Morrison. In

Kazzaz, we held that 18 U.S.C. § 371 (which prohibits conspiracy to

defraud the United States) and the Anti-Kickback Act apply abroad

because those statutes "by their nature implicate the legitimate interests

of the United States.” 592 F. App'x at 555 (quoting Corey, 232 F.3d at

26 USA V. ALAHMEDALABDALOKLAH

We have not articulated a generally applicable rule that

emerges from these cases, but we find that the D.C. District

Court's decision in United States v. Al-Imam, 373 F. Supp.

3d 247 (D.D.C. 2019) aptly describes how Bowman may be

reconciled with Morrison and RJR Nabisco:

Bowman is satisfied when (1) a federal

criminal offense directly harms the U.S.

Government, and (2) enough foreseeable

overseas applications existed at the time of a

statute's enactment (or most recent

amendment) to warrant the inference that

Congress both contemplated and authorized

prosecutions for extraterritorial acts.

373 F. Supp. 3d at 261 (citing United States v. DelgadoGarcia, 374 F.3d 1337, 1347 (D.C. Cir. 2004)). We adopt

Al-Imam's formulation of Bowman's rule because it

accurately and persuasively summarizes the same legal

principle that emerges from our own cases.

Oklah urges us to take a different approach. Setting

aside decades of circuit precedent in which we have applied

Bowman and have given extraterritorial effect to statutes that

criminalize conduct that harms the federal government,

Oklah argues that Bowman's analysis is "outmoded and

incompatible” with Morrison and RJR Nabisco. He urges us

to follow the D.C. Circuit's decision in United States v.

Garcia Sota, which rejected "a broad rule that criminal

statutes that protect the United States Government from

1170) (citing Bowman, 260 U.S. at 98; Felix-Gutierrez, 940 F.2d at

1204; and Cotten, 471 F.2d at 750).

USA V. ALAHMEDALABDALOKLAH 27

harm” should apply beyond our borders. 948 F.3d 356, 360

(D.C. Cir. 2020).

Garcia Sota held that 18 U.S.C. § 1114, a statute that

criminalizes the murder of federal officers and employees,

did not apply extraterritorially. 948 F.3d at 357. In reaching

that conclusion, the D.C. Circuit strictly applied the rule

from RJR Nabisco and held that § 1114 did not apply abroad

because it lacked an explicit Step-One statement indicating

congressional intent for § 1114 to have extraterritorial reach,

and the D.C. Circuit did not see any other clear indication

that the presumption was overcome. Id. at 358–60. We have

taken a different approach and have long held that § 1114

applies abroad. See United States v. Lopez-Alvarez, 970

F.2d 583, 596 (9th Cir. 1992). As we explained in FelixGutierrez:

[W]e will infer congressional intent to

provide for extraterritorial jurisdiction for

crimes that are not dependent on the locality

in which they were committed "but are

enacted because of the right of the

Government to defend itself . . . .”

940 F.2d at 1204 (quoting Bowman, 260 U.S. at 98); accord

Vasquez-Velasco, 15 F.3d at 839 n.4. Garcia Sota does not

persuade us to change course. If anything, the statute

Congress enacted in response to Garcia Sota suggests that

Congress is mindful of Bowman's longstanding rule.7

7 The year after Garcia Sota issued, Congress responded by passing a

law to "clarify the original intent” that § 1114 and two similar statutes

applied extraterritorially. Jamie Zapata and Victor Avila Federal

Officers and Employees Protection Act, § 2(5), Pub. L. No. 117-59, 135

28 USA V. ALAHMEDALABDALOKLAH

We are not persuaded that Bowman cannot be reconciled

with the Supreme Court's more recent decisions in Morrison

and RJR Nabisco. We recognize that Bowman is not a

perfect fit for this case—Oklah is a foreign national, the

charged conduct occurred entirely in a foreign country, and

the conduct criminalized by 18 U.S.C. § 844(f) does not

always occur abroad. Nevertheless, Bowman has been

settled law for over a century. We are mindful of the

Supreme Court's instruction that "'[i]f a precedent of [the

Supreme] Court has direct application in a case,' . . . a lower

court 'should follow the case which directly controls,

leaving to [the Supreme] Court the prerogative of overruling

its own decisions'”—"even if the lower court thinks the

precedent is in tension with 'some other line of decisions.'”8

Our consistent application of Bowman's rule is part of the

context we consider in deciding whether Congress intended

§ 844(f) to apply abroad. See Parker Drilling Mgmt. Servs.,

Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) ("Congress

legislates against the backdrop of existing law.” (quoting

McQuiggin v. Perkins, 569 U.S. 383, 398 n.3 (2013))).

Stat. 1468, 1468 (2021). Congress amended all three statutes to make

them explicitly extraterritorial. Id. § 3 (codified at 18 U.S.C. §§ 111,

115, 1114). In doing so, Congress specifically approved of the approach

taken by the Second, Ninth, and Eleventh Circuits in holding that § 1114

applies extraterritorially. Id. § 2(3).

8 Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2038 (2023) (quoting

Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484

(1989)); see Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir. 2011)

(en banc) ("As a circuit court, even if recent Supreme Court

jurisprudence has perhaps called into question the continuing viability of

its precedent, we are bound to follow a controlling Supreme Court

precedent until it is explicitly overruled by that Court.” (internal

quotations, alterations, and citations omitted)).

USA V. ALAHMEDALABDALOKLAH 29

B. 18 U.S.C. § 844(f): Damage or Destruction of

Federal Property by Means of Fire or Explosive

With Al-Imam's legal framework and our longstanding

interpretation of Bowman in mind, we ask whether the text

and context of 18 U.S.C. § 844(f) and (n) provide a clear

indication that they apply extraterritorially. We begin with

the statute's text. Subsection (f) criminalizes "damag[ing]

or destroy[ing], by means of fire or an explosive, any

building, vehicle, or other personal or real property in whole

or in part owned or possessed by, or leased to, the United

States, or any department or agency thereof, or any

institution or organization receiving Federal financial

assistance.” 18 U.S.C. § 844(f)(1). Because Subsection (n)

criminalizes conspiracy to commit any of the offenses listed

in 18 U.S.C. § 844, whether it applies extraterritorially

depends on whether § 844(f) applies extraterritorially. See

Felix-Gutierrez, 940 F.2d at 1205 ("We have inferred

extraterritorial application of conspiracy statutes on the basis

of a finding that the underlying substantive statutes reach

extraterritorial offenses.”); Perez, 962 F.3d at 440–41.

Neither subsection's text contains an explicit statement

of extraterritorial reach, but this does not end our inquiry.

See RJR Nabisco, 579 U.S. at 340 ("[A]n express statement

of extraterritoriality is not essential.”). Following RJR

Nabisco, we next look to the statute's context. Like the

conduct criminalized by the statute considered in Bowman

and the examples the Court listed in that decision, conduct

that damages or destroys federal property unquestionably

tends to obstruct the federal government's functions

regardless of where it occurs, and therefore implicates the

right of the government to defend itself. Bowman, 260 U.S.

at 98. There were enough foreseeable overseas applications

at the time § 844(f) was enacted to warrant the inference that

30 USA V. ALAHMEDALABDALOKLAH

Congress contemplated and authorized extraterritorial

application because the federal government owns a

significant amount of property outside the United States'

territorial jurisdiction.9 We also consider that, if we were to

conclude that § 844(f) is limited to the United States'

territorial jurisdiction, it would "greatly . . . curtail [its]

scope and usefulness” and "leave open a large immunity” for

acts causing damage or destruction of federal property that

are "as easily committed . . . on the high seas and in foreign

countries as at home.” Id.

The conclusion that § 844(f)'s prohibition on damage or

destruction of federal property applies abroad as well as

domestically also conforms to the most analogous preMorrison precedent from our circuit, Cotten. In Cotten, we

considered 18 U.S.C. § 641. 471 F.2d at 749–51. That

statute prohibits theft of U.S. government property. Cotten

reasoned that, because § 641 "certainly represents an

exercise by the Government of its right to defend itself,”

limiting its application abroad would "allow and condone

lawlessness at Government installations wherever located.”

Id. at 750. Under Al-Imam's framework, we discern no

9 Section 844(f) was enacted as part of the Explosive Control Act, which

constitutes Title XI of the Organized Crime Control Act of 1970. See

Pub. L. No. 91-452, § 1102(a), 84 Stat. 922, 957. Its most recent

substantive amendment occurred as part of the Homeland Security Act

of 2002. See Pub. L. No. 107-296, §§ 1125, 1127, 116 Stat. 2135, 2285–

86 (amending § 844(f) to include "any institution or organization

receiving Federal financial assistance” within its ambit). In 2002, the

State Department alone was responsible for about 3,500 U.S.

Government-owned properties at over 220 overseas locations. U.S.

Gov't Accountability Off., GAO-02-590, State Department: Sale of

Unneeded Overseas Property Has Increased, but Further Improvements

Are Necessary 1 (2002), https://www.gao.gov/assets/gao-02-590.pdf

[https://perma.cc/ZAT6-6YUJ].

USA V. ALAHMEDALABDALOKLAH 31

reason why we should analyze the extraterritoriality of a

statute that prohibits damage or destruction of government

property differently from one that criminalizes theft of the

same.

We acknowledge that § 844(f) sweeps in the property of

"any institution or organization receiving Federal financial

assistance.” Much of that property, like federal property, is

located abroad. We have not addressed the extent to which

damage or destruction of this type of property implicates the

government's right to defend itself against obstruction. Cf.

United States v. Sidorenko, 102 F. Supp. 3d 1124, 1126,

1130 (N.D. Cal. 2015) (concluding that Bowman supplied no

basis to apply wire fraud and corruption statutes to

defendants' extraterritorial bribery of an employee of a

United Nations agency funded in part by the U.S.

government). Oklah does not argue that the "institution or

organization” clause in § 844(f) changes the

extraterritoriality analysis in his case, which rests only on the

government-property clause, but we briefly consider

whether it alters § 844(f)'s otherwise extraterritorial scope.

The "institution or organization” clause is a relatively

recent addition to the statute. It was first proposed as Section

5 of the Anti-Terrorism Explosives Act of 2002. See AntiTerrorism Explosives Act of 2002 § 5, H.R. 4864, 107th

Cong. That bill became the Safe Explosives Act, which

Congress ultimately enacted as Title IX, Subtitle C of the

Homeland Security Act of 2002. See Homeland Security

Act of 2002, Pub. L. No. 107-296, §§ 1121, 1125, 116 Stat.

2135, 2280, 2285. The House Report on the Anti-Terrorism

Explosives Act explained the purpose of the § 844(f)

amendment as, among other things, "expand[ing] Federal

jurisdiction over intentional fires or explosions occurring on

Federal property to include institutions or organizations

32 USA V. ALAHMEDALABDALOKLAH

receiving Federal financial assistance” and "provid[ing] the

protection of Federal criminal laws to additional entities.”

H.R. Rep. No. 107-658, at 5–6, 14; see 148 Cong. Rec.

S11374, S11393, 2002 WL 31567345 (ordering by

unanimous consent that this report's section-by-section

analysis be printed in the Congressional Record of the

Senate debate on the Homeland Security Act). This

legislative history does not suggest that Congress intended

the 2002 amendment to restrict § 844(f)'s extraterritorial

reach, and we see no other indication that Congress intended

this later-adopted amendment to limit the extent to which

§ 844(f)'s government-property clause applies overseas.

C. Location of Apprehension, Nationality, and the Rule

of Lenity

Oklah contends that Bowman is not controlling because:

(1) he was apprehended abroad; (2) he is a foreign national;

and (3) to the extent § 844(f)'s application to him is

ambiguous, the rule of lenity tips the balance in his favor.

As to the first argument, we are unaware of any precedent or

legal principle that renders the location of a defendant's

apprehension (as distinct from the location of the alleged

criminal conduct) relevant to whether a criminal statute

applies abroad, and Oklah has not presented any support for

this argument apart from asserting it in conclusory terms.

See Fed. R. App. P. 28(a)(8)(A) (The appellant's brief must

set forth both "appellant's contentions and the reasons for

them, with citations to the authorities . . . on which the

appellant relies.”). We are not persuaded that the location of

Oklah's apprehension bears on whether § 844(f) applies to

his conduct.

Oklah's second argument is based on his foreign

nationality, and it has greater merit. In Bowman, the

USA V. ALAHMEDALABDALOKLAH 33

Supreme Court stated that its rule applies "especially” if the

charged crime is committed by U.S. "citizens, officers, or

agents.” Bowman, 260 U.S. at 98. The only defendant in

Bowman who was a foreign national was still at large, and

the Supreme Court expressly reserved the question of "what,

if any, jurisdiction the District Court below has to punish

him when he is brought to trial.” Id. at 102–03. From this,

Oklah urges us to conclude that Bowman's rule does not

allow the Government to prosecute him.

Oklah's nationality is relevant to the question of

statutory construction with which we grapple at Step One of

the RJR Nabisco analysis, but only indirectly. His

nationality-based argument sounds in the international law

of jurisdiction.10 See id. When a statute does not expressly

provide for extraterritorial application, we may consult

international law as part of the relevant context that we

consider at Step One. See United States v. Neil, 312 F.3d

419, 422 (9th Cir. 2002); see also Murray v. Schooner

Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n

act of Congress ought never to be construed to violate the

law of nations if any other possible construction remains . .

. .”).

We have applied statutes that otherwise provide a clear

indication of extraterritorial effect to nationals and

foreigners alike, but only after confirming that doing so is

consistent with international law. See, e.g., Neil, 312 F.3d at

422; Felix-Gutierrez, 940 F.2d at 1205. Our circuit has

recognized five theories of international criminal

jurisdiction: "territorial, national, protective, universality,

and passive personality.” United States v. Hill, 279 F.3d

10 Oklah does not argue that the statute or his conviction is inconsistent

with international law.

34 USA V. ALAHMEDALABDALOKLAH

731, 739 (9th Cir. 2002); see Restatement (Fourth) of

Foreign Relations Law § 402(1) & cmts. e–k (Am. L. Inst.

2018).

Jurisdiction under the passive personality principle is

based on the nationality of the victim, regardless of the

accused's nationality. Neil, 312 F.3d at 422–23. Count Two

of the operative indictment charged Oklah with violating

subsections (f) and (n) of § 844 by conspiring to damage or

destroy property owned by the Department of Defense. The

Department of Defense is a component of the U.S.

government. Under the protective principle, "jurisdiction is

based on whether the national interest or national security is

threatened or injured by the conduct in question.” FelixGutierrez, 940 F.2d at 1206. Count Two charged Oklah with

conduct that plainly threatens the national interest. Thus,

two different principles of international law support the

assertion of jurisdiction for purposes of Count Two, and we

are unconvinced that Oklah's nationality counsels against

extraterritorial application of § 844(f) in this case.11

Finally, we reject Oklah's argument that the rule of lenity

should apply. After consulting the relevant context,

including Bowman, we conclude that the exterritorial reach

of § 844(f) is not ambiguous. See Ocasio v. United States,

578 U.S. 282, 295 n.8 (2016) ("Th[e] rule [of lenity] applies

11 Under the national principle (also called the "active personality”

principle), a nation can "apply its statutes to extraterritorial acts of its

own nationals.” Hill, 279 F.3d at 740. The apprehended defendants in

Bowman, and both defendants in Cotten, were U.S. nationals, so

asserting jurisdiction over them was proper under the national principle.

See Bowman, 260 U.S. at 95, 102; Cotten, 471 F.2d at 745, 749–51.

Here, because Oklah is not a U.S. national, the national principle would

not permit the district court to assert jurisdiction over the charged

extraterritorial conduct.

USA V. ALAHMEDALABDALOKLAH 35

only when a criminal statute contains a grievous ambiguity

or uncertainty, and only if, after seizing everything from

which aid can be derived, the Court can make no more than

a guess as to what Congress intended.” (citation and internal

quotation marks omitted)); see also Bowman, 260 U.S. at

102 (rejecting the defendants' lenity argument).

Having considered § 844(f)'s unqualified text and

context, we conclude that this statute is one of the "rare

statute[s] that clearly evidences extraterritorial effect despite

lacking an express statement of extraterritoriality.” RJR

Nabisco, 579 U.S. at 340; see also Al-Imam, 373 F. Supp. 3d

at 265–66 (holding that § 844(f) applies abroad). Because

we conclude that the presumption against extraterritoriality

is rebutted by the context of § 844(f) at RJR Nabisco Step

One, we need not and do not proceed to Step Two of the RJR

Nabisco analysis. See Hussain, 972 F.3d at 1143.

II. Use of Classified Information

The Government's investigation of Oklah's case

included classified materials. Thus, during pretrial

discovery, the Government and Oklah invoked the processes

set forth in the Classified Information Procedures Act

(CIPA), 18 U.S.C. app. 3.

The Government ultimately filed four ex parte motions

invoking CIPA procedures to withhold or "substitute”

classified information from discovery. See 18 U.S.C. app. 3

§§ 4, 6. We discuss these motions only generally and

without any reference to the content of the classified

information. With one exception explained below, the

district court granted the Government's motions to provide

"substitutions” to the defense in place of some of the

classified information. The court also allowed the

36 USA V. ALAHMEDALABDALOKLAH

Government to withhold ("delete”) some of the classified

information from its discovery responses.

On January 19, the week before trial began, the

Government filed its third CIPA motion and sought

permission to withhold certain classified information. The

district court rejected this request and ultimately approved a

one-page substitution that was disclosed to the defense (the

Al-Dhari substitution). The Government acknowledged this

substitution was produced late, and it agreed to stipulate to

the Al-Dhari substitution's admissibility at trial. The AlDhari substitution played a significant role in the trial court

proceedings and was the basis for additional motions

practice before the district court.12 Oklah argued, among

other things, that the substitution showed Al-Dhari testified

falsely about his role in the Brigades at his pretrial deposition

and that the Government should be required to search DoD's

records broadly for further evidence of cooperation between

the Brigades and U.S. military forces.

On appeal, Oklah preserves his contention that the

Government's use of CIPA procedures, including the use of

CIPA substitutions, violated his Fifth and Sixth Amendment

rights. He also requests that our court independently review

the classified evidence the Government withheld from him,

and that we obtain independent translations of any original

submissions or source material written in Arabic.13 We

12 In the Al-Dhari substitution, the Government acknowledged that AlDhari was a commander in the Brigades; that he was part of an insurgent

group operating in Iraq; and, that the Brigades were fighting multinational forces in Iraq.

13 Oklah generally disputed the accuracy of the Arabic translations

introduced by the Government at trial. But as the district court

recognized, Oklah never lodged specific objections to the Government's

USA V. ALAHMEDALABDALOKLAH 37

review for abuse of discretion the district court's CIPA

discovery orders. See United States v. Clegg, 740 F.2d 16,

18 (9th Cir. 1984).

"Congress enacted CIPA in 1980 'to help ensure that the

intelligence agencies are subject to the rule of law and to help

strengthen the enforcement of laws designed to protect both

national security and civil liberties.'” United States v.

Sedaghaty, 728 F.3d 885, 903 (9th Cir. 2013) (quoting S.

Rep. No. 96-823, at 3 (1980)). CIPA "does not expand or

restrict established principles of discovery and does not have

a substantive impact on the admissibility of probative

evidence.” Id. Instead, CIPA provides a procedural

mechanism for handling classified information in criminal

cases so that district courts may rule on admissibility issues

involving classified information before introduction of such

materials in open court. Id. at 903–04.14 Two CIPA sections

are relevant here: Section 4, which governs pretrial

discovery of classified information by defendants; and

Section 6, which governs the procedures for safeguarding

classified information pretrial and during trial.

"Congress intended [S]ection 4 to clarify the court's

powers under Fed. R. Crim. P. 16(d)(1) to deny or restrict

discovery in order to protect national security.” United

translations and did not call his own Arabic expert to testify. In his brief

on appeal, Oklah cites one example of a translation that he argues

indicates that the FBI's translations were unreliable. This example

shows only that during cross-examination, the translator changed his

English interpretation of Arabic text after he was shown a better-quality

image of an exhibit.

14 See United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988)

(explaining that Congress passed CIPA to prevent the problem of

"graymail,” a practice by which "defendants pressed for the release of

classified information to force the government to drop the prosecution”).

38 USA V. ALAHMEDALABDALOKLAH

States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988).

Section 4 provides that a district court may authorize the

Government, "upon a sufficient showing,” to take any of

three actions: (1) "to delete specified items of classified

information from documents to be made available to the

defendant through discovery under the Federal Rules of

Criminal Procedure”; (2) "to substitute a summary of the

information for such classified documents”; or (3) "to

substitute a statement admitting relevant facts that the

classified information would tend to prove.” 18 U.S.C. app.

3, § 4.

District courts may review the Government's CIPA

motions in camera and ex parte. See, e.g., 18 U.S.C. app. 3,

§ 4 ("The court may permit the United States to make a

request for such authorization in the form of a written

statement to be inspected by the court alone.”); Fed. R. Crim.

P. 16(d)(1); Sedaghaty, 728 F.3d at 908 ("CIPA does not

limit the court's discretion to hold an ex parte conference if

it is required by some overriding necessity such as the

necessity to protect sensitive information related to national

security.”). Oklah recognizes that our precedent forecloses

the argument that his constitutional rights were violated

because he and his counsel were not present at several CIPA

hearings, and because his counsel was prohibited from

sharing or discussing certain "Secret”-level documents with

him, see, e.g., Sedaghaty, 728 F.3d at 908, 910, but he

questions whether the Government complied with CIPA in

other respects.

A district court considering a request by the Government

to withhold classified information first must determine

whether the Federal Rules of Criminal Procedure, a statute,

or common law make the information discoverable to the

defense (as, for example, evidence "material to preparing the

USA V. ALAHMEDALABDALOKLAH 39

defense” pursuant to Rule 16(a)(1)(E)(i)). Sedaghaty, 728

F.3d at 904; see United States v. Rewald, 889 F.2d 836, 847

& n.5 (9th Cir. 1989), amended, 902 F.2d 18 (9th Cir. 1990).

If the material is discoverable, the Government must

formally assert the state-secrets privilege to withhold the

information as classified. See United States v. KlimaviciusViloria, 144 F.3d 1249, 1261 (9th Cir. 1998). This claim of

privilege must "be lodged by the head of the department

which has actual control over the matter, after actual

personal consideration by that officer.” Id. (quoting United

States v. Reynolds, 345 U.S. 1, 7–8 (1953)). If the court

determines that the information is discoverable and the statesecrets privilege applies, the court next must determine

whether the evidence is "relevant and helpful” to the defense

of the accused. Sedaghaty, 728 F.3d at 904 (quoting Roviaro

v. United States, 353 U.S. 53, 60 (1957)). If the information

is "relevant and helpful,” CIPA Section 4 permits the district

court to determine the terms of discovery. Id.

CIPA Section 6 governs "determinations concerning the

use, relevance, or admissibility of classified information that

would otherwise be made during the trial or pretrial

proceeding.” 18 U.S.C. app. 3, § 6(a). CIPA Section 6(c)

deals with substitutions and provides that a court may

authorize a substitution in place of classified material in the

form of a statement or summary if the court "finds that the

statement or summary will provide the defendant with

substantially the same ability to make his defense as would

disclosure of the specific classified information.” 18 U.S.C.

app. 3, § 6(c)(1). A substitution need not be of "precise,

concrete equivalence,” and the "fact that insignificant

tactical advantages could accrue to the defendant by the use

of the specified classified information should not preclude

the court from ordering alternative disclosure.” Sedaghaty,

40 USA V. ALAHMEDALABDALOKLAH

728 F.3d at 905 (quoting H.R. Rep. No. 96-1436, at 12–13

(1980) (Conf. Rep.)). The summary must be "evenhanded,

worded in a neutral fashion and not tilted or shaded to the

government's advantage.” Id. at 906. We have held that a

district court abuses its discretion by permitting a

substitution that "excludes non-cumulative exculpatory

information,” "fails to provide crucial context,” has "slanted

wording,” or is otherwise "incomplete.” Id.

The Government filed four CIPA motions in Oklah's

case. Oklah requests that we "review the classified record in

full to determine whether he was denied material that would

have been relevant and helpful” and "whether the [Al-Dhari]

Substitution protected his right to present a complete

defense.” The nature of our review is awkward—Oklah is

forced to raise a CIPA claim "without actually knowing what

the classified record contains, while we know what it

contains but are unable to describe it on the public record.”

Id. Because we lack the benefit of the adversarial process,

we are mindful that "we must place ourselves in the shoes of

defense counsel, the very ones that cannot see the classified

record, and act with a view to their interests.” United States

v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012).

Having placed ourselves in defense counsels' shoes and

examined the classified record in full, we conclude that the

district court did not abuse its discretion in its CIPA rulings

and confirm that the withheld classified materials were either

not discoverable, or were not relevant and helpful to Oklah's

defense. Nor did the district court abuse its discretion by

authorizing the Government to turn over substitution

statements to the defense in lieu of other discovery. The

district court's CIPA rulings reflect that it thoroughly

reviewed the classified documents to ensure that Oklah's

defense would not be prejudiced, and we note that the court

USA V. ALAHMEDALABDALOKLAH 41

rejected one of the Government's requests to delete relevant

and helpful information from discovery—a ruling with

which we agree. We are satisfied that the CIPA substitutions

provided Oklah "with substantially the same ability to make

his defense as would disclosure of the specific classified

information.” 18 U.S.C. app. 3, § 6(c)(1).

However, in several of its supporting declarations, the

Government failed to invoke the state-secrets privilege

through "the head of the department which has actual control

over the matter, after actual personal consideration by that

officer.” Klimavicius-Viloria, 144 F.3d at 1261 (emphasis

added) (quoting Reynolds, 345 U.S. at 7–8). Instead, the

Government relied on supporting declarations from lowerranked officials within the respective government entities.

These declarations are insufficient to sustain the

Government's invocation of the state-secrets privilege.

Our en banc court has explained that certification by a

department's political head is "fundamental to the

government's claim of privilege” and "responsibility for this

task may not be delegated to lesser-ranked officials.”

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080

(9th Cir. 2010) (en banc). We recognize that CIPA itself

does not impose this requirement but, as explained, CIPA

does not expand or restrict established discovery principles,

Sedaghaty, 728 F.3d at 903, and it presupposes the existence

of the state-secrets privilege, United States v. Aref, 533 F.3d

72, 78 (2d Cir. 2008). Our prior CIPA decisions requiring a

declaration from department heads sourced this obligation

from the Supreme Court's decision in United States v.

Reynolds, 345 U.S. 1, where the Court considered the scope

of the state-secrets privilege. See Sedaghaty, 728 F.3d at

904; Klimavicius-Viloria, 144 F.3d at 1261. Accordingly,

we adhere to the Supreme Court's and our own precedent

42 USA V. ALAHMEDALABDALOKLAH

applying the state-secrets privilege, and again hold that this

privilege requires formal invocation by "the head of the

department which has control over the matter” or by a

"minister who is the political head of the department.”

Reynolds, 345 U.S. at 8 & n.20.

Other circuit courts are divided on this issue. See, e.g.,

Aref, 533 F.3d at 80 (requiring privilege to be asserted by the

head of the department as mandated by Reynolds); United

States v. El-Mezain, 664 F.3d 467, 521–22 (5th Cir. 2011)

(disagreeing with Aref); United States v. Rosen, 557 F.3d

192, 198 (4th Cir. 2009) (concluding that agency head did

not need to invoke privilege in criminal matters under

CIPA). As a three-judge panel, we must adhere to the rule

set forth in our prior published CIPA decisions.15

Having concluded that the Government's invocations of

the privilege are not backed by the required declarations of

a department head, we address the proper remedy. We

excuse the Government's failure to comply with the formal

invocation requirement in this case because, as the Second

Circuit concluded in United States v. Stewart, "[i]t would 'be

of little or no benefit' for us to remand for the purpose of

having the department head agree that disclosure of the

classified information would pose a risk to national security

here.” 590 F.3d 93, 132 (2d Cir. 2009) (alteration in

original) (quoting Aref, 533 F.3d at 80). Our review of the

classified documents leaves no doubt that the Government

may validly invoke the privilege in this case.

15 We are not persuaded that the requirements set forth by the Supreme

Court in Reynolds should apply only in civil cases, see Rosen, 557 F.3d

at 198; El-Mezain, 664 F.3d at 521, because a criminal defendant's right

to a fair trial implicates compelling interests that are protected by our

constitution.

USA V. ALAHMEDALABDALOKLAH 43

We note that the Government argued to the district court

that it understood its classified declarations complied with

our case law because courts applying Sedaghaty and

Klimavicius-Viloria have purportedly accepted classified

declarations from subordinate officials despite the rule

announced in those cases. This is insufficient. The

Government's invocation of the privilege must be backed by

a declaration of a department head. The Government is on

notice—and has been at least since Klimavicius-Viloria was

decided in 1998—that the procedures for invoking the statesecrets privilege require an actual declaration from the

political head of the department invoking the privilege. We

expect that district courts in our circuit will enforce this rule

strictly and that this issue will not arise in future CIPA cases.

III. Jamal Al-Dhari's Deposition Testimony

Oklah argues that we must vacate his conviction because

the use of Al-Dhari's deposition testimony at trial violated

Oklah's rights under the Confrontation Clause; the Supreme

Court's rulings in Brady v. Maryland, 373 U.S. 83 (1963),

Giglio v. United States, 405 U.S. 150 (1972), and Napue v.

Illinois, 360 U.S. 264 (1959); and the rule against the

admission of hearsay evidence. Oklah's challenges are

closely related, but distinct. His confrontation challenge

focuses on whether he had a sufficient opportunity to crossexamine Al-Dhari at his overseas deposition and whether the

deposition could be introduced in lieu of Al-Dhari's live

testimony at trial. Oklah's Brady/Giglio claims focus on

whether the Government's delay in producing exculpatory

and impeaching materials affected the trial's outcome. His

Napue claim alleges that the Government violated his due

process rights by introducing Al-Dhari's testimony, which

Oklah contends was false or misleading. Finally, Oklah's

hearsay challenge focuses on whether Al-Dhari

44 USA V. ALAHMEDALABDALOKLAH

impermissibly testified about Brigades leader Harith's

unsworn, out-of-court statements. We affirm the district

court's rulings as to each of these claims.

A. Background Facts Related to Al-Dhari's Deposition

Jamal Al-Dhari was an important Government witness

because he connected Oklah to the Brigades. He testified in

this case via a pretrial deposition taken in Latvia that was

played for the jury at trial.

On March 8, 2017, approximately ten months before

trial, the parties filed a joint motion for leave to take three

foreign depositions to use in lieu of live testimony at trial.

The Government requested permission to depose Al-Dhari

and Ali-Ways; Oklah sought to depose a person he identified

as his employee in China, Guo Xu.16 The parties stipulated

that their agreed-upon deposition procedure would protect

Oklah's rights under the Confrontation Clause and

sufficiently ensure the reliability of the witnesses'

testimony. They also represented there was a "chance [these

witnesses] may not be able to travel to the United States to

testify at trial,” and stipulated that "the use of the

[witnesses'] videotaped deposition testimony at trial subject

to the Court's relevancy determination, is just under current

circumstances.” The parties also stipulated that the

videotaped testimony "be used in lieu of live testimony at

trial.” The district court granted the parties' joint motion.

Meanwhile, on March 25, 2017, Al-Dhari traveled to the

United States to meet with members of Congress. He also

met with Government counsel in Washington, D.C. On June

16 The parties cited Federal Rule of Criminal Procedure 15(h), which

provides "the parties may by agreement take and use a deposition with

the Court's consent.”

USA V. ALAHMEDALABDALOKLAH 45

14, 2017, the Government informed the defense that AlDhari had traveled to the United States and that the

Government had interviewed him. The Government

produced email correspondence between Al-Dhari and FBI

Special Agent Whitson. In the emails, Whitson and AlDhari discussed Al-Dhari's pending visa application and the

"Muslim travel ban” executive order issued in the United

States in January 2017, which prevented Al-Dhari from

traveling here. Whitson told Al-Dhari that he would try to

provide updated information concerning Al-Dhari's pending

visa application. The defense voiced no objection after

receiving these disclosures, and defense counsel participated

in Al-Dhari's deposition in Latvia on July 13. On September

28, trial was rescheduled to January 23, 2018.

In late November 2017, Oklah moved to strike AlDhari's foreign deposition. He argued that the Government

had obtained his agreement to the foreign depositions by

falsely representing that it was necessary to preserve AlDhari's testimony in a pretrial deposition, even though the

Government knew that Al-Dhari was able to travel to the

United States. The Government's opposition argued that

both sides knew the foreign witnesses "were potentially able

to travel to the United States,” and that it had merely

represented that Al-Dhari "may not be able to travel to the

United States,” not that he definitely would be unable to do

so.

On January 16, 2018, the district court denied Oklah's

motion to strike the depositions, but acknowledged that the

Government's statements regarding its need to depose AlDhari overseas had been "arguably misleading.”

Accordingly, the court ordered the Government to "make

every effort to secure” Al-Dhari's presence for trial because

46 USA V. ALAHMEDALABDALOKLAH

"[a]bsent evidence [Al-Dhari was] truly unavailable, [his]

deposition[] w[ould] not be allowed at trial.”

On January 17, the district court heard argument on AlDhari's unavailability. The Government represented that it

had contacted Al-Dhari after receiving the court's order and

had requested that he come to court in Phoenix. According

to the Government, Al-Dhari responded by saying he did not

understand "why his previous deposition was not sufficient,

given [the court's] order” allowing overseas depositions to

be taken. Al-Dhari "decline[d] to come to court” because he

did not want to be seen as doing a significant favor for the

U.S. government on the eve of Iraqi elections. The

Government also represented that it learned Al-Dhari had

applied for a visa to come to the United States and might

arrive around the time the trial was scheduled to start. The

Government explained that it had informed Al-Dhari that, if

he came to this country, he would be expected to attend trial

and the court could direct him to do so. The Government

stated that it would monitor the situation, and the district

court informed the parties that it would subpoena Al-Dhari

if he arrived in the United States. On appeal, Oklah argues

that Al-Dhari eventually postponed his trip, asked Whitson

to update him on the trial's status, and came to the United

States two weeks after the trial concluded.

Also relevant to Oklah's challenge to the use of AlDhari's deposition testimony, the Government filed its third

CIPA motion the week before trial began and the district

court approved the Al-Dhari substitution for disclosure. In

full, the substitution read:

A. For the purposes of this litigation, the

United States Government acknowledges

that, beginning no later than September 2004,

USA V. ALAHMEDALABDALOKLAH 47

Jamal Wahad Al-Dari was a commander in

the Battalion of the 1920's Revolution

Brigades.

B. For the purposes of this litigation, the

United States Government acknowledges

that, in or about September 2004, Jamal

Wahad Al-Dari was part of an insurgent

group operating in the Al Anbar province of

Iraq including in the city of Fallujah. For the

purposes of this litigation, the U.S.

government also acknowledges that this

insurgent group has posed as police officers

to kidnap and rob Iraqi businessmen.

C. For the purposes of this litigation, the

United States Government acknowledges

that the priority of the 1920's Revolution

Brigades was fighting multinational forces in

Iraq, and that within the 1920's Revolution

Brigades, a/k/a 1920's Revolution Battalion,

Al-Dari played a political, religious, as well

as military role.

The Government simultaneously produced to the

defense documents from Al-Dhari's visa application file,

including visa applications that he had submitted in 2016 and

2017 to travel to the United States and memoranda from

consular officials seeking to waive his inadmissibility and to

have his name removed from the "no-fly list” so he could

travel to this country. The consular materials reflect that AlDhari applied for a visa around July 8, 2016, and notations

indicate that the FBI initially told the State Department that

it believed Al-Dhari's NGO was a "front for an insurgent

organization in Iraq,” and that Al-Dhari was a "mid-level

48 USA V. ALAHMEDALABDALOKLAH

leader” for the Brigades. But in October 2016, Al-Dhari met

with the FBI and began corresponding with Agent Whitson.

The next notation in Al-Dhari's visa file reflects that the FBI

determined he was not a threat to aviation and anticipated he

might testify at Oklah's trial, then scheduled for September

2017.

The file includes a request submitted by a consular

officer in February 2017 seeking waiver of Al-Dhari's

inadmissibility and no-fly status. Al-Dhari eventually

received permission to travel to the United States on March

7, 2017, to meet with members of Congress. The

Government offered to stipulate to the admission of these

belatedly disclosed documents at trial, but defense counsel

chose to introduce only the visa records.

On January 29, the day before trial began, Oklah filed a

renewed motion to strike Al-Dhari's testimony. This time,

Oklah argued that the admission of Al-Dhari's deposition

would violate his due process and confrontation rights

because: (1) the Al-Dhari CIPA substitution showed that AlDhari had committed perjury at his deposition; (2) Oklah

lacked an opportunity to cross-examine Al-Dhari about the

late-produced visa applications and CIPA substitution; and

(3) Al-Dhari was not unavailable. At a hearing on the

motion, the Government offered to stipulate to admit the

late-disclosed materials into evidence and the district court

denied the motion to strike.

B. Oklah's Confrontation Clause Challenges

On appeal, Oklah argues that the introduction of AlDhari's deposition at trial violated the Confrontation Clause

because: (1) Al-Dhari's deposition was taken outside of

Oklah's physical presence; (2) the Government failed to

show that Al-Dhari was unavailable to testify at trial; and (3)

USA V. ALAHMEDALABDALOKLAH 49

Oklah lacked an adequate opportunity for crossexamination. We address each argument in turn.

The Sixth Amendment's Confrontation Clause

"guarantees the right of an accused in a criminal prosecution

to be confronted with the witnesses against him.” United

States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) (en

banc) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678

(1986)) (internal quotation marks omitted). The Clause

protects a defendant's "right [to] physically . . . face those

who testify against him,” Coy v. Iowa, 487 U.S. 1012, 1017

(1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51

(1987) (plurality opinion)), and prohibits the admission of

"testimonial statements of a witness who did not appear at

trial unless he was unavailable to testify, and the defendant

had had a prior opportunity for cross-examination,”

Crawford v. Washington, 541 U.S. 36, 53–54 (2004).

We review de novo whether limitations on crossexamination are so severe as to amount to a violation of the

Confrontation Clause, United States v. Beardslee, 197 F.3d

378, 383 (9th Cir. 1999), amended on denial of reh'g, 204

F.3d 983 (9th Cir. 2000), and whether the district court

correctly construed the rule against hearsay and its

exceptions, United States v. Pena-Gutierrez, 222 F.3d 1080,

1086 n.3 (9th Cir. 2000). We review the district court's

underlying factual findings for clear error. United States v.

Spencer, 592 F.3d 866, 878 (8th Cir. 2010); United States v.

Carson, 455 F.3d 336, 362 (D.C. Cir. 2006) (per curiam).

i. Physical confrontation

Al-Dhari's deposition was video-recorded in Latvia and

played for the jury at trial. Oklah first contends that the use

of the deposition at trial violated his right to physically

confront Al-Dhari "face-to-face.” He relies on United States

50 USA V. ALAHMEDALABDALOKLAH

v. Carter, 907 F.3d 1199 (9th Cir. 2018), where we held that

"[c]riminal defendants have a right to 'physical, face-to-face

confrontation at trial,' and that right cannot be compromised

by the use of a remote video procedure unless [such

procedure] is 'necessary' . . . and 'the reliability of the

testimony is otherwise assured.'” Id. at 1202 (quoting

Maryland v. Craig, 497 U.S. 836, 850 (1990)). Oklah argues

that it was unnecessary to deprive him of his right to confront

Al-Dhari in person because Al-Dhari traveled to the United

States before trial.

We agree with the Government that Oklah waived his

physical confrontation challenge to the foreign deposition

procedure because he voluntarily and knowingly agreed that

the logistics used to preserve Al-Dhari's testimony satisfied

Oklah's right to confrontation. See United States v. Perez,

116 F.3d 840, 845 (9th Cir. 1997) (en banc) (explaining that

while forfeited issues are reviewable for plain error, waived

issues are not reviewable). In a joint motion with the

Government, Oklah stipulated that the parties' agreed-upon

logistics for the foreign depositions would adequately

protect his confrontation rights and that the video deposition

furthered "the compelling government interest in

prosecuting international terrorism.” The joint motion

represented that, "given the chance [the witnesses] may not

be able to travel to the United States to testify at trial, foreign

depositions are necessary for a just resolution of this

litigation.” Oklah also agreed that the parties' suggested

arrangements for the overseas depositions protected his

ability to participate, ensured that he and the witnesses could

observe each other during the depositions, and would

USA V. ALAHMEDALABDALOKLAH 51

produce reliable testimony.17 The joint motion concluded

with a request that the court order the foreign depositions and

that the "videotaped deposition testimony be used in lieu of

live testimony at trial.”

On appeal, Oklah argues he did not waive his

confrontation right both because his Confrontation Clause

objection did not ripen until the Government sought to

introduce Al-Dhari's deposition at trial, and also because the

Government wrongfully obtained his consent to the joint

motion by misrepresenting Al-Dhari's willingness and

ability to travel to the United States. Neither argument is

persuasive. Oklah agreed to deposition procedures

specifically intended to preserve Al-Dhari's testimony for

later use at trial, so his objection to the procedures comes

too late. Further, Oklah participated in the foreign

deposition without objection, despite knowing that Al-Dhari

had recently visited the United States. Indeed, the defense

conceded to the district court that it knowingly chose to

forgo any physical-presence objection at the time of the

deposition because Oklah wanted to conduct his own foreign

deposition of Guo Xu. Thus, the record shows that Oklah

made a strategic decision to waive the objection he now

advances.

Our decision in United States v. Santos-Pinon, 146 F.3d

734 (9th Cir. 1998), reinforces this conclusion. There, a

criminal defendant challenged the admission of videotaped

17 Oklah participated in Al-Dhari's deposition via video, with some

defense lawyers physically present in Latvia with the witness and others

present with Oklah in Arizona. Oklah was able to confer with his counsel

in Arizona, and the record shows that counsel in Arizona was able to

communicate and provide input to defense counsel in Latvia while the

deposition was conducted.

52 USA V. ALAHMEDALABDALOKLAH

testimony at trial, arguing that the government rendered the

witness unavailable by deporting him to Mexico. Id. at 736–

37. We held that the defendant waived his confrontation

challenge because he failed to timely object to the witness's

release to immigration authorities. Id. at 736. We noted that

the district court's general order "clearly provide[d] for the

opportunity to object” and gave notice that the witness was

to be "released and deported absent an objection.” Id. Given

these circumstances, we concluded that allowing a defendant

to preserve an objection to the release of the witness would

place the government "in the impossible position of being

faced with an objection once it is too late to take any

necessary corrective action.” Id. at 736–37. We concluded

the obligation to object arose before the defendant's

confrontation rights were implicated at trial. Id. at 737 n.4.

Santos-Pinon governs. Oklah is correct that

confrontation challenges ordinarily do not ripen until the

government seeks to offer a hearsay statement at trial, see

United States v. Matus-Zayas, 655 F.3d 1092, 1101 (9th Cir.

2011), but the record here leaves no room to doubt that

Oklah voluntarily consented to, and participated in, the

agreed-upon deposition and video-link procedure, knowing

that the foreign deposition was meant to "preserv[e]

testimony for possible subsequent use” at trial, SantosPinon, 146 F.3d at 737 n.4 (emphasis omitted) (quoting

United States v. Drogoul, 1 F.3d 1546, 1554 (11th Cir.

1993)). Under these circumstances, the time to object to the

plan to preserve the testimony of Al-Dhari and Ali-Ways

through foreign depositions, and to permit the Government

to "take any necessary corrective action” to address any

interference with Oklah's right to physical confrontation, id.

at 736–37, was before Al-Dhari's deposition occurred, see

Perez, 116 F.3d at 845.

USA V. ALAHMEDALABDALOKLAH 53

ii. Unavailability

Oklah argues that the district court erred when it

concluded that Al-Dhari was unavailable for trial. A witness

is "unavailable” for purposes of the exception to the

confrontation requirement only if "prosecutorial authorities

have made a good-faith effort to obtain [the witness's]

presence at trial.” Hardy v. Cross, 565 U.S. 65, 69 (2011)

(per curiam) (quoting Barber v. Page, 390 U.S. 719, 724–25

(1968)). That said, "[t]he law does not require the doing of

a futile act,” and "[t]he lengths to which the prosecution

must go to produce a witness . . . is a question of

reasonableness.” Ohio v. Roberts, 448 U.S. 56, 74 (1980)

(third alteration in original) (citation omitted), abrogated on

other grounds by Crawford, 541 U.S. at 60. "'Good faith'

and 'reasonableness' are terms that demand fact-intensive,

case-by-case analysis, not rigid rules.” Christian v. Rhode,

41 F.3d 461, 467 (9th Cir. 1994).

Here, Oklah argues, and the Government does not

dispute, that a "heightened” standard of reasonableness

applies to our evaluation of the Government's efforts to

obtain Al-Dhari's presence at trial because the jury's

assessment of Al-Dhari's testimony, and therefore his

credibility, was exceptionally important to the

Government's case and Oklah had strong confrontation

interests at stake. See, e.g., United States v. Yida, 498 F.3d

945, 960 (9th Cir. 2007); Cook v. McKune, 323 F.3d 825,

835 (10th Cir. 2003). Applying a "heightened” standard of

reasonableness, we conclude the district court did not clearly

err when it found that the Government made reasonable,

good-faith efforts to secure Al-Dhari's presence at trial, and

we find no error in the court's conclusion that the

Government met its burden of showing that Al-Dhari was

unavailable to testify.

54 USA V. ALAHMEDALABDALOKLAH

Our decision in United States v. Yida, 498 F.3d 945,

informs this inquiry.18 In Yida, a cooperating foreignnational witness pleaded guilty to conspiring with the

defendant to import ecstasy, and the witness was eventually

released to immigration authorities for deportation

proceedings. 498 F.3d at 947. The government detained the

witness for trial with a material-witness warrant, and his

testimony turned out to be critical for the government's case.

Id. at 947–48. After the witness testified in the criminal case,

the jury reached an impasse, the district court declared a

mistrial, and the witness's attorney asked the government to

resume the witness's deportation proceedings. Id. at 948.

The government obliged, having received assurances from

the witness and his attorney that he would return to testify if

asked. Id. The government deported the witness, but it did

not notify the defense or the district court about its

agreement with the witness or the resumed deportation

proceedings. Id.

Before retrial in the drug conspiracy case, the

government asked the witness to return to the United States,

but he refused for medical reasons. Id. The government then

moved to admit the witness's prior testimony. Id. at 949.

The government argued that the witness was unavailable and

that it had released the witness, who previously had been

detained pursuant to a material-witness warrant, because of

18 In Yida, we applied the standard for "unavailability” found in Federal

Rule of Evidence 804(a)(5). That analysis also informs our resolution of

Oklah's Confrontation Clause claim because Rule 804 "implements the

command of the Sixth Amendment's Confrontation Clause.” Yida, 498

F.3d at 950–51. Yida interpreted Rule 804's unavailability requirement

consistently with the Confrontation Clause to avoid making

"unnecessary constitutional decisions.” Id. at 963 (Gould, J.,

concurring).

USA V. ALAHMEDALABDALOKLAH 55

its concern for his due process right to not be subject to

detention after he testified. Id. at 957. The district court

denied the government's motion, and we affirmed its ruling.

Id. at 947, 949. We ruled that the government failed to use

"reasonable means” to secure the witness's appearance and

fell short of its burden to establish that the witness was

unavailable. Id. at 961.

Several factors informed our analysis in Yida. First, we

reasoned that "[i]mplicit . . . in the duty to use reasonable

means to procure the presence of an absent witness is the

duty to use reasonable means to prevent a present witness

from becoming absent.” Id. at 955 (alterations in original)

(quoting United States v. Mann, 590 F.2d 361, 368 (1st Cir.

1978)). We acknowledged that "the appropriate time-frame

for assessing the government's actions will vary, according

to the specific facts presented,” but we considered the

government's conduct before the witness was deported

because, during that interval, the government maintained

control over the witness pursuant to the detainer and

material-witness warrant. Id. at 955–56; see United States v.

Burden, 934 F.3d 675, 687 (D.C. Cir. 2019) (explaining that

analysis of "good-faith, reasonable efforts . . . should

account for the good faith and reasonableness” of the

government's conduct that first rendered the witness

unavailable). We rejected the government's reliance on the

witness's assurances that he would return because the

witness was a convicted felon, and his earlier cooperation

was coerced by his federal custody and the conditions of his

plea agreement. Yida, 498 F.3d at 957–58.

We also rejected the government's argument that it had

resumed the deportation proceedings out of concern for the

witness's due process right not to be subject to undue

detention because the government had detained him on a

56 USA V. ALAHMEDALABDALOKLAH

warrant for five months. Id. at 958. We reasoned that the

fact the government held the witness for five months

suggested it had concluded the witness was untrustworthy

and unlikely to appear voluntarily. Id. Yida recognized that

a witness has a due process interest that is implicated when

he is held in custody before trial, especially when the

detainee faces no criminal charges, is detained only as a

material witness, or may be detained for an indefinite period.

Id.; see United States v. Eufracio-Torres, 890 F.2d 266, 270

(10th Cir. 1989).

The outcome in Yida turned on the government's

inability to explain why it suddenly weighed the witness's

due process concerns more heavily against the risk of flight

when it had previously chosen to detain the witness for five

months. 498 F.3d at 958. Nor did the government

persuasively argue that the witness was released due to

concerns about detaining him indefinitely because the retrial

was set for a date certain, and that date would not have

implicated a prolonged delay. Id. Finally, Yida cited several

alternatives to prolonged detention and deportation,

including confiscating the witness's passport, serving a

subpoena, imposing home confinement, or offering to take a

video deposition with the defendant's participation to

preserve the witness's testimony. Id. at 959–60.

Oklah criticizes the Government's conduct before and

after Al-Dhari's foreign deposition. In his telling, the

Government expended significant effort to obtain AlDhari's cooperation by assisting in his visa application

process, meeting with him in Washington, D.C., and

traveling overseas for his deposition, while the

Government's efforts to keep Al-Dhari in the United States

and within the court's subpoena power for trial were

lackluster. More specifically, Oklah argues that the

USA V. ALAHMEDALABDALOKLAH 57

Government acted unreasonably by failing to notify defense

counsel or the district court until June 2017 that Al-Dhari

had traveled to the United States, failing to serve Al-Dhari

with a subpoena while he was in the United States, and

failing to arrest him as a material witness.

We agree with the district court that, in hindsight, the

Government's representations in the joint motion about AlDhari's ability to travel to the United States were "arguably

misleading.” But, as discussed previously, the defense was

aware, as of June 2017, that Al-Dhari had recently traveled

to the United States. The defense became aware of that fact

after the parties filed their joint motion to elicit Al-Dhari's

testimony, but before the Government took Al-Dhari's

deposition. The joint motion and the district court's order

made clear that the purpose of the deposition was to preserve

Al-Dhari's testimony for trial.

Unlike the defendant in Yida, who was unaware of the

witness's release and deportation, Oklah had an opportunity

to object and argue that Al-Dhari should be required to

appear for the initial target trial date in September 2017.

Oklah did not do so. Instead, he made the strategic choice

not to object because he wanted to conduct his own foreign

deposition of his former employee in China and use that

deposition at trial. Faced with the parties' agreement in the

joint motion and Oklah's silence after learning that the

Government met with Al-Dhari in Washington, D.C., the

Government was not on notice that it had to make any

additional effort to secure Al-Dhari's presence at the

September 2017 trial.19 Cf. Burden, 934 F.3d at 687

19 Contrary to Oklah's arguments, the other factors in Yida reinforce our

conclusion: Oklah argues the Government should have subpoenaed AlDhari for trial, but the subpoena would have been ineffectual after Al-

58 USA V. ALAHMEDALABDALOKLAH

(explaining that when "the government knew or should have

known of the potential need for the witness's testimony

before he was deported, the government's duty to make

good-faith, reasonable efforts to ensure the witness's

presence arises before the witness leaves the United States”

(emphasis added)).

The parties also dispute the adequacy of the

Government's efforts to get Al-Dhari to return to the United

States after the district court rescheduled the trial and

ordered the Government to use its best efforts to secure his

appearance. Oklah argues that the Government "actually

warned” Al-Dhari not to return to the United States because,

as of January 2018 (less than one month before the

rescheduled trial), Al-Dhari had a pending U.S. visa

application, a plane ticket, and a hotel reservation to travel

to the United States during the first two weeks of trial. Oklah

argues that, after speaking with the Government, Al-Dhari

Dhari left the country and, unlike the witness in Yida, Al-Dhari had

strong due process interests in not being detained on a material-witness

warrant or being kept in the United States because he was not charged

with any crime. Yida does not support Oklah's suggestion that the

Government was required to arrest Al-Dhari as an alleged co-conspirator

or material witness because charging decisions fall squarely within the

executive's prosecutorial discretion. See, e.g., Flagler v. Trainor, 663

F.3d 543, 548 (2d Cir. 2011) ("Seeking a material witness order is within

the prosecutor's 'function' as an advocate. A prosecutor employs

prosecutorial discretion when determining whether to seek such an

order.”). In its briefing on appeal, the Government proffers several

reasons why it declined to charge Al-Dhari or seek his arrest, including

the lack of forensic evidence against him, the likelihood that he would

cease cooperating, and the potential detriment to U.S. foreign-policy

objectives.

USA V. ALAHMEDALABDALOKLAH 59

postponed his trip and later contacted Whitson and asked to

be informed when Oklah's trial was over.20

Oklah fails to show that the district court clearly erred by

finding that the Government made a good-faith and

reasonable effort to obtain Al-Dhari's appearance at trial,

after the trial court ordered the Government "to make every

effort to secure [Al-Dhari's] presence at trial,” and directed

that, if he was "available to travel, [he] should be produced

here.” The following day, Government counsel explained

that he had spoken with Al-Dhari "to ask that he come to

court pursuant to the Court's direction,” and Al-Dhari

declined to come.

Oklah does not persuasively argue that the Government

was required to do anything further after Al-Dhari refused to

attend. He argues that the Government acted unreasonably

because it "warned” Al-Dhari not to come to the United

States, but the district court made no such finding. The court

instead concluded that "the information and the explanation

I have received as to why he is not going to be here is

acceptable . . . without any contrary information or

evidence.” We accept the district court's factual finding

about the Government's conduct during the call with AlDhari because it is not clearly erroneous.

20 Oklah did not raise any contemporaneous objection in response to

Whitson's testimony that Al-Dhari contacted him to ask to be informed

when the trial was completed. After trial, Oklah filed a Rule 33(b)

motion arguing that Al-Dhari's post-trial travel to the United States in

April 2018 was newly discovered evidence that, "particularly in light of

Agent Whitson's testimony,” demonstrated that Al-Dhari was not

unavailable. The district court denied the Rule 33 motion because the

evidence of Al-Dhari's travel to the United States would not result in an

acquittal. On appeal, Oklah does not challenge the district court's order

denying his Rule 33 motion.

60 USA V. ALAHMEDALABDALOKLAH

When Government counsel learned from Al-Dhari that

he had a pending visa application, counsel told him:

"[T]hat's great. If you come for business, we expect you to

come to court.” Unlike the witness in Yida, Al-Dhari had

cooperated with having his testimony recorded without any

pending criminal proceeding against him. Oklah argues that

Al-Dhari traded his testimony for the benefit of obtaining a

visa to travel to Washington, D.C., but this argument

overlooks that Al-Dhari participated at his deposition after

he had been in the United States and had the opportunity to

lobby members of Congress. A surprise subpoena or

material-witness warrant while Al-Dhari was in the United

States may have caused Al-Dhari to refuse to cooperate with

the planned deposition in the months that followed. Oklah

cites no authority for the proposition that the Government

was required to stop talking to Al-Dhari about testifying in

person, or that by informing him that the court would require

him to attend trial if he returned to the United States, the

Government wrongfully procured Al-Dhari's

unavailability.21

The district court did not err by concluding that the

Government made a good-faith, reasonable effort to procure

Al-Dhari's presence at trial, or by ruling that Al-Dhari was

unavailable.

iii. Right to effective cross-examination

Oklah argues that the admission of Al-Dhari's deposition

at trial violated Oklah's confrontation rights because he

lacked an adequate opportunity to cross-examine Al-Dhari

21 Oklah also argues that the Government should have invoked a mutual

legal assistance treaty and requested Latvia's assistance in compelling

Al-Dhari to give live, video-linked testimony at trial. Because Oklah

never requested this relief in the district court, this argument is forfeited.

USA V. ALAHMEDALABDALOKLAH 61

about Brady impeachment material that the Government

disclosed shortly before trial and after Al-Dhari's foreign

deposition. The confrontation right includes "the right of

effective cross-examination.” United States v. Kohring, 637

F.3d 895, 905 (9th Cir. 2011) (quoting United States v.

Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) (en banc)). We

are not persuaded by Oklah's challenge.

The parties deposed Al-Dhari in July 2017, but in

January 2018 the Government disclosed the Al-Dhari CIPA

substitution, Al-Dhari's 2016 and 2017 visa applications,

and various State Department consular memos. Oklah

argues that without these materials at the deposition, he was

deprived of an opportunity to impeach Al-Dhari about: (1)

Al-Dhari's statements that he received no benefit for his

testimony and that he did not ask the FBI for help obtaining

a visa to enter the United States; and (2) the response on AlDhari's visa application that he never had "served in, been a

member of, or been involved with,” among other things, an

"insurgent organization” or "committed, ordered, incited,

assisted, or otherwise participated” in "political killings[] or

other acts of violence.” Oklah contends that he would have

impeached Al-Dhari with the visa applications because AlDhari testified that he supported the Brigades and, in the AlDhari substitution, the Government conceded that Al-Dhari

was a Brigades leader with a military role.

The confrontation right protects a defendant's ability to

cross-examine a witness about topics that "might

reasonably” lead a jury to "question the witness's reliability

or credibility.” Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir.

2021) (alteration accepted) (quoting Fowler v. Sacramento

Cnty. Sheriff's Dep't, 421 F.3d 1027, 1036 (9th Cir. 2005)).

Defense counsel may cross-examine to show potential bias

and must be allowed "to make a record from which to argue

62 USA V. ALAHMEDALABDALOKLAH

why the witness might have been biased.” United States v.

Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005) (alteration

accepted) (emphasis omitted) (quoting Davis v. Alaska, 415

U.S. 308, 318 (1974)). We have "emphasized the policy

favoring expansive witness cross-examination in criminal

trials,” United States v. Cazares, 788 F.3d 956, 983 (9th Cir.

2015) (quoting Larson, 495 F.3d at 1102), because the Sixth

Amendment "commands . . . that reliability be assessed in a

particular manner: by testing in the crucible of crossexamination,” Gibbs, 996 F.3d at 602 (quoting Crawford,

541 U.S. at 61).

The Confrontation Clause guarantees "an opportunity

for effective cross-examination,” but it does not confer an

unlimited right to "cross-examination that is effective in

whatever way, and to whatever extent, the defense might

wish.” Van Arsdall, 475 U.S. at 679 (quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Nor does

the Confrontation Clause "require the government to

disclose all documents that might be helpful on crossexamination.” United States v. Cardenas-Mendoza, 579

F.3d 1024, 1030 (9th Cir. 2009); see Ritchie, 480 U.S. at 53

(plurality opinion) ("The ability to question adverse

witnesses . . . does not include the power to require the

pretrial disclosure of any and all information that might be

useful in contradicting unfavorable testimony.”).

Neither the Supreme Court nor our court has definitively

determined whether the government violates a defendant's

confrontation right by delaying the disclosure of

impeachment materials that are necessary for the defendant

to "confront the witnesses against him in a meaningful

manner,” United States v. Collins, 551 F.3d 914, 925 (9th

Cir. 2009); see, e.g., Fenenbock v. Dir. of Corr.., 692 F.3d

910, 916 n.5 (9th Cir. 2012) (explaining that this issue is

USA V. ALAHMEDALABDALOKLAH 63

"subject to dispute”), but we have generally assumed

without deciding that such a claim is cognizable, see, e.g.,

Gibbs, 996 F.3d at 605; Collins, 551 F.3d at 925.22

In the context of a Confrontation Clause challenge, the

Supreme Court has stated that, to determine whether a

defendant received an adequate opportunity for effective

cross-examination, we ask whether "[a] reasonable jury

might have received a significantly different impression of

[the witness's] credibility had [defense] counsel been

permitted to pursue his proposed line of cross-examination.”

Van Arsdall, 475 U.S. at 680. "[T]he focus of the prejudice

inquiry in determining whether the confrontation right has

been violated must be on the particular witness, not on the

outcome of the entire trial.” Id. We consider how relevant

the restricted cross-examination would have been and

"whether the exclusion of evidence left the jury with

sufficient information to assess the credibility of the

witness.” Larson, 495 F.3d at 1103 (alteration accepted)

(quoting Beardslee, 197 F.3d at 383)). That determination

requires weighing other "information adduced through

cross-examination” of the witness, but a "restriction on

cross-examination cannot be justified by reference to other

evidence a defendant presented.” Gibbs, 996 F.3d at 602.

Accordingly, whether a defendant's opportunity for crossexamination was sufficient for Confrontation Clause

22 We separately consider whether suppressed evidence affected a

defendant's opportunity to cross-examine witnesses in the context of

Brady claims, which sound in due process. For Brady claims, we ask

whether there is a reasonable probability that, had the information been

timely disclosed (and the cross-examination occurred), the result at trial

would have been different. See, e.g., Sedaghaty, 728 F.3d at 901–02;

Kohring, 607 F.3d at 904–06; United States v. Price, 566 F.3d 900, 913–

14 (9th Cir. 2009).

64 USA V. ALAHMEDALABDALOKLAH

purposes "turns on the scope of the cross-examination that

. . . [was] permitted.” Id.

23

Oklah first argues that the consular memos show that AlDhari received a significant benefit for his cooperation—

removal from the no-fly list and waiver of his

inadmissibility—and that Oklah's confrontation rights were

violated because he was not able to cross-examine Al-Dhari

about these benefits. The Government disputes Oklah's

interpretation of the consular memos and argues that the

memos show only that the consular officer requested AlDhari's removal from the no-fly list and a waiver of his

inadmissibility because Al-Dhari was scheduled to meet

with members of Congress.

Oklah's interpretation of the consular memos is

supported by the record; the Government's is not. The

consular memos and State Department processing materials

strongly suggest that Al-Dhari's cooperation with the FBI

positively affected his visa application. Notations in Al23 The government incorrectly suggests that Oklah's opportunity to admit

the consular memos and visa application into evidence at trial vitiates

any Confrontation Clause violation. We disagree. Oklah's ability to

introduce that evidence at trial bears on our analysis of his Brady and

Napue claims, but it does not represent a remedy that ends our

Confrontation Clause inquiry. We assess the relevance of the

unavailable consular materials and visa application by looking to the

cross-examination that Oklah conducted at the deposition, and we ask

whether Oklah's cross-examination was so restricted that the jury did not

have "sufficient information to assess the credibility of the witness.”

Larson, 495 F.3d at 1103 (quoting Beardslee, 197 F.3d at 383). As we

explain, to the extent that Oklah lost the ability to cross-examine AlDhari in real-time about the consular memos and visa materials, this

cross-examination at Al-Dhari's deposition would not have affected the

jury's perception of his testimony in light of the cross-examination that

Oklah was able to conduct.

USA V. ALAHMEDALABDALOKLAH 65

Dhari's visa file between July and October 2016 show the

FBI informed the State Department that Al-Dhari was

connected to an Iraqi insurgent organization and that the FBI

believed he was a mid-level leader in the Brigades. The

State Department subsequently refused to grant Al-Dhari a

visa. But after Al-Dhari met with Agent Whitson and other

members of the FBI for an interview in Latvia in June 2016,

the next State Department notation, dated November 2,

2016, states:

[Redacted] Met with FBI agents from

Phoenix who are at post talking with [AlDhari] about serving as key witness in a

terrorism case, to testify in September 2017.

FBI assesses he is not a threat to aviation.

Applicant also plans trip to DC to meet with

State and Hill contacts in winter-spring 2017.

[Redacted].

The Consular Chief cited Al-Dhari's anticipated

participation in Oklah's upcoming trial and Al-Dhari's

opportunity to meet with the FBI during his March visit as

grounds for waiving Al-Dhari's inadmissibility and

removing him from the no-fly list. The Government is

correct that the consular official also cited Al-Dhari's

upcoming visits with members of Congress, but the Consular

Chief expressly identified Al-Dhari's cooperation in Oklah's

case as one ground for waiving his inadmissibility.

Nevertheless, we conclude that the information the

defense had at the deposition to question Al-Dhari about his

bias, related to the adjudication of his visa application, was

sufficient to avoid violating the Confrontation Clause.

Oklah argues that Al-Dhari testified falsely when he stated

66 USA V. ALAHMEDALABDALOKLAH

that he received no benefits in exchange for his agreement to

testify. Even if Al-Dhari's agreement to testify prompted the

Government to remove him from the no-fly list and grant his

visa, Oklah failed to show that Al-Dhari knew about the

Government's alleged motivation or that Al-Dhari testified

falsely at the time of the deposition.

The consular memos hint at why Al-Dhari may have

been biased, but the Government's pre-deposition

disclosures provided stronger grounds for confronting AlDhari on that issue. Prior to Al-Dhari's deposition, the

Government disclosed to defense counsel a series of emails

between Al-Dhari and Agent Whitson, in which Whitson

told Al-Dhari that he would monitor Al-Dhari's visa

application, implied several times that he had or could get

inside information about Al-Dhari's visa status, and

suggested next steps (such as booking travel with a U.S.

airline) to facilitate Al-Dhari's travel to the United States.

Moreover, several of those emails showed that Al-Dhari

believed Whitson had some level of involvement in the visa

process because Al-Dhari repeatedly thanked Whitson for

his "help in this visa case and other cases too”; said he

"really appreciate[d] what [Whitson] [was] doing”; and

"hope[d] [Whitson's] efforts w[ould] make changes with

this situation.”

Defense counsel acknowledged to the district court that,

at the time of the deposition, the defense knew Al-Dhari

"was having problems coming to the United States,” and

they were aware "Agent Whitson did something, sent an

email, maybe bumped him up the priority line, you know,

got his file perhaps to the top of somebody's desk off of the

bottom so that things got moved a little bit faster.” At the

time of the deposition, the defense also knew Al-Dhari had

a strong incentive to come to the United States to further his

USA V. ALAHMEDALABDALOKLAH 67

political ambitions, but Oklah apparently made a strategic

decision to call a separate witness at trial to testify about this

source of bias, rather than cross-examining Al-Dhari about

his political activities. The defense also took the opportunity

to cross-examine Al-Dhari about his relationship with

Whitson.

Even after the Government produced the consular

memos, the emails between Al-Dhari and Whitson, which

the Government had produced before the deposition, remain

the best evidence in the record of Al-Dhari's knowledge

about the prosecution's ability to influence the visa approval

process. Those emails provided more promising grounds for

questioning the strength of Al-Dhari's pro-government bias.

On this record, we are not persuaded that if Oklah had been

able to cross-examine Al-Dhari about the late-produced

consular materials, the cross-examination would have made

a material difference in the jury's assessment of Al-Dhari.

Our precedent is in accord. In Gibbs, we upheld a

California court's determination that belated disclosures

would not have "materially enhanced the effectiveness of

cross-examination” and concluded that because counsel had

been permitted to question the witness about cash payments,

it was unclear what more cross-examination about a

"somewhat higher dollar amount” would have added. 996

F.3d at 605. In Gibbs, we concluded that the prosecution's

late disclosures to the defense would have revealed that law

enforcement found the witness to be an "unreliable

informant.” Id. Nonetheless, we held that the belated

disclosures did not violate the Confrontation Clause because

the defendants failed to explain what foundation existed for

asking about those disclosures on cross-examination, and

they did not argue that the witness was aware of law

enforcement's opinion of him. Id. The same holds true here.

68 USA V. ALAHMEDALABDALOKLAH

Oklah does not explain why the consular materials shed light

on what Al-Dhari knew about the reasons behind his visa

approval, and Oklah had significant opportunities to

impeach Al-Dhari with his pro-government bias.

Oklah separately argues, for the first time in his reply

brief, that he was prevented from cross-examining Al-Dhari

about information in his visa application, including

statements that Al-Dhari had not "served in, been a member

of, or been involved with,” an "insurgent organization” or

"committed, ordered, incited, assisted, or otherwise

participated” in "political killings[] or other acts of

violence.” Oklah forfeited this Confrontation Clause claim.

See, e.g., Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, 852 n.3

(9th Cir. 2012) ("[A]rguments raised for the first time in a

reply brief are waived.” (alteration in original) (citation

omitted)).

But even if that claim were not forfeited, the

Government's late disclosures did not deprive Oklah of an

adequate opportunity to cross-examine Al-Dhari because the

jury would not have "received a significantly different

impression of [Al-Dhari's] credibility” had the defense

asked about the statements on his visa application. Van

Arsdall, 475 U.S. at 680. In his testimony, Al-Dhari openly

admitted that he aided the Brigades, and he made clear that

he was proud of his family's affiliation with the group. He

was unequivocal in his statement that he believed the

Brigades' violent activities were "very legal” and that the

Brigades "had the right to do what [they] did,” including

using force to expel "the American invasion or occupation.”

Al-Dhari was also unequivocal in his support for Oklah—

the jury heard testimony that he attempted to secure Oklah's

release from detention in Turkey—and the record establishes

that he continued to support Oklah even after he became

USA V. ALAHMEDALABDALOKLAH 69

aware Oklah had been involved in the manufacture of IEDs

of the type that killed and seriously injured U.S. troops. We

are also skeptical that this line of questioning would have

been helpful to Oklah's defense, given that tying Al-Dhari

more closely to the Brigades likely would have tied Oklah

himself more closely to the Brigades' actions.

We have also recognized that cross-examination

attacking only the witness's "general credibility, not [his]

bias,” is less likely to change the jury's impression of a

witness's credibility. Sully v. Ayers, 725 F.3d 1057, 1075

(9th Cir. 2013); see, e.g., Evans v. Lewis, 855 F.2d 631, 634

(9th Cir. 1988) ("[T]he defendant's right to attack the

witness's general credibility enjoys less protection than his

right to develop the witness's bias.” (quoting Reiger v.

Christensen, 789 F.2d 1425, 1433 (9th Cir. 1986))); Hughes

v. Raines, 641 F.2d 790, 793 (9th Cir. 1981) (finding no

Confrontation Clause violation when "[t]he object of the

intended cross-examination in this case was not to establish

bias against the defendant or for the prosecution; it merely

would have been to attack the general credibility of the

witness on the basis of an unrelated prior incident”).

Even though Oklah lost the opportunity to question AlDhari about the visa statements during his deposition, we are

not persuaded that this questioning would have made a

difference to the jury's impression of Al-Dhari's testimony.

Confronting Al-Dhari with his answer on the visa

application might have provided another opportunity to

attack his "character for truthfulness generally,” but Oklah

had substantial opportunities to cross-examine Al-Dhari

about his pro-government bias, which "bore on [his]

reliability and credibility in the specific context before the

jury.” Fowler, 421 F.3d at 1043. For example, the defense

cross-examined Al-Dhari about the challenges he faced

70 USA V. ALAHMEDALABDALOKLAH

obtaining a visa to come to the United States, his freedom to

travel around the United States when he visited, his political

organizations, and his efforts to schedule meetings with

members of Congress. Al-Dhari might well have explained

that his denials on the application were correct because, in

his view, the Brigades' defense of Iraq was justified.

Considering Al-Dhari's testimony as a whole, we are not

persuaded that Oklah's ability to cross-examine Al-Dhari

with the visa application and consular materials would have

led the jury to question Al-Dhari's veracity or progovernment bias further, and we conclude that the belated

disclosures did not deny Oklah the opportunity to crossexamine Al-Dhari effectively.

iv. The Government's conduct at Al-Dhari's

deposition

Oklah also argues that he lacked an adequate opportunity

to cross-examine Al-Dhari about his bias because the

Government refused to let Al-Dhari answer questions about

his potential criminal exposure. We disagree.

The district court's order granting the parties' joint

motion to take foreign depositions directed that "all

evidentiary objections under United States law made during

the proceedings will be noted and preserved for the Court as

provided in Rule 15(f) of the Federal Rules of Criminal

Procedure and Rule 30(c) of the Federal Rules of Civil

Procedure.” Federal Rule of Criminal Procedure 15(f)

states: "A party may use all or part of a deposition as

provided by the Federal Rules of Evidence.” Federal Rule

of Civil Procedure 30(c)(2) provides that objections "must

be noted on the record, but the examination still proceeds

. . . . A person may instruct a deponent not to answer only

when necessary to preserve a privilege, to enforce a

USA V. ALAHMEDALABDALOKLAH 71

limitation ordered by the court, or to present a motion under

Rule 30(d)(3).”

Oklah claims that the Government obstructed defense

counsel's questioning by explicitly instructing Al-Dhari not

to answer a pending question. The transcript refutes that

claim. The record shows that defense counsel chose to

rephrase the question in response to an objection by the

Government rather than waiting for Al-Dhari's answer.

Because the government did not instruct the witness not to

answer or in any other way interfere with defense counsel's

questioning, Oklah did not show that the Government

violated his right to confrontation by obstructing his

examination of Al-Dhari.

C. Brady/Giglio Challenges

Oklah also argues that the Government violated his due

process rights by failing to disclose the Al-Dhari

substitution, the consular memos, and Al-Dhari's visa

application until shortly before trial. We review Oklah's

Brady/Giglio challenges de novo. See United States v. Liew,

856 F.3d 585, 596 (9th Cir. 2017).

In Brady, the Supreme Court held that "suppression by

the prosecution of evidence favorable to an accused . . .

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” 373 U.S. at 87. In Giglio, the

Court extended this principle to the suppression of evidence

that impeaches a witness's credibility. 405 U.S. at 154–55.

To establish a Brady/Giglio claim, a defendant must show

that: (1) the evidence at issue would have been favorable to

the accused, either because it was exculpatory or

impeaching; (2) it was suppressed by the prosecution, either

willfully or inadvertently; and (3) it was material. See

72 USA V. ALAHMEDALABDALOKLAH

Strickler v. Greene, 527 U.S. 263, 281–82 (1999); Kohring,

637 F.3d at 901.

Evidence is material within the meaning of Brady "if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different.” Ochoa v. Davis, 16 F.4th 1314, 1327

(9th Cir. 2021) (emphasis added) (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun,

J.)), cert. denied, 143 S. Ct. 126 (2022); see Kyles v. Whitley,

514 U.S. 419, 434–35 (1995) (recognizing a Brady violation

if undisclosed favorable evidence "undermines confidence

in the outcome of the trial” (quoting Bagley, 473 U.S. at

678)). There may be a "reasonable probability” of a

different result "even where the remaining evidence would

have been sufficient to convict the defendant.” Kohring, 637

F.3d at 902 (citation omitted). We consider the effect of

suppressed evidence collectively.24 Id.

The Government does not dispute that the Al-Dhari

substitution, the consular memos, and Al-Dhari's visa

applications were favorable to Oklah's defense and that the

Government had a duty to produce them pursuant to Brady

and Giglio. The Government argues that Oklah's materiality

arguments fail because it produced this evidence before trial

and "at a time when it still ha[d] value.” (alteration in

original) (quoting United States v. Houston, 648 F.3d 806,

813 (9th Cir. 2011)). Oklah disagrees and contends that he

24 "The terms 'material' and 'prejudicial' are used interchangeably in

Brady cases.” Sivak v. Hardison, 658 F.3d 898, 911 n.3 (9th Cir. 2011)

(quoting Benn v. Lambert, 283 F.3d 1040, 1053 n.9 (9th Cir. 2002)). For

Brady purposes, evidence is not "material” unless the failure to produce

it is "prejudicial,” and not "prejudicial” unless the failure to produce it is

"material.” See id.

USA V. ALAHMEDALABDALOKLAH 73

received this evidence too late to investigate or to confront

Al-Dhari with it.

Because the relevant information was eventually

disclosed to the defense:

[O]ur inquiry on appeal is not whether the

evidence, had it been disclosed, might

reasonably have affected the jury's judgment

on some material point. Rather, it is whether

the lateness of the disclosure so prejudiced

appellant's preparation or presentation of his

defense that he was prevented from receiving

his constitutionally guaranteed fair trial.

United States v. Miller, 529 F.2d 1125, 1128 (9th Cir. 1976)

(emphasis added). If the defendant is presented with a

substantial opportunity to use the belatedly disclosed

evidence, there is no prejudice. See United States v. Gordon,

844 F.2d 1397, 1403 (9th Cir. 1988); United States v.

Shelton, 588 F.2d 1242, 1247 (9th Cir. 1978) ("There can be

no claim of prejudice insofar as the defendant was enabled

to present to the jury favorable or impeaching evidence.”).

We conclude that Oklah had a substantial opportunity to use

the evidence, so these Brady claims fail.

Oklah argues that he was deprived of an opportunity to

investigate the belatedly disclosed evidence. Our case law

has recognized that a continuance granted for the purposes

of preparation and investigation will often remedy any

prejudice to the defendant's case resulting from latedisclosed evidence. See, e.g., United States v. GamezOrduño, 235 F.3d 453, 461–62 (9th Cir. 2000); see also

United States v. Mathur, 624 F.3d 498, 506 (1st Cir. 2010).

74 USA V. ALAHMEDALABDALOKLAH

Here, a continuance might have allowed Oklah to engage

in some follow-up investigation into the late-disclosed

documents, but a continuance likely would not have allowed

Oklah the opportunity to cross-examine Al-Dhari because

Al-Dhari did not return to the United States until a few

weeks after trial concluded. Nevertheless, we recognize

that, "[w]here the withheld evidence opens up new avenues

for impeachment, it can be argued that it is still material”

even when the defense has already introduced other

impeachment evidence. Gonzalez v. Wong, 667 F.3d 965,

984 (9th Cir. 2011).

This claim fails because Oklah has not shown that the

defense's ability to cross-examine Al-Dhari about the visa

materials would have left the jury with a materially different

impression of Al-Dhari. The jury already knew that AlDhari supported the Brigades and that he had a strong

incentive to cooperate with the Government so that he could

travel to Washington, D.C., to lobby members of Congress.

The Government also agreed to stipulate to the admission of

these documents, so Oklah had an opportunity to present this

evidence to the jury and to argue its relevance. Had he done

so, the Government would not have had the ability to

rehabilitate Al-Dhari because he was not available to be

recalled at trial.

Even if the ability to challenge Al-Dhari with this

evidence in real time would have added to the reasons the

jury had to doubt Al-Dhari's credibility, key parts of AlDhari's testimony were corroborated by Ali-Ways'

testimony, including Ali-Ways' statements that Oklah

shipped IED components from China to Iraq, including

DTMF-11 boards; that Oklah sent IED components to Abu

Ghassan; and that Oklah indicated the components were for

the Brigades' use. See Hovey v. Ayers, 458 F.3d 892, 920

USA V. ALAHMEDALABDALOKLAH 75

(9th Cir. 2006) ("That Lee's testimony corroborated

[testimony] given by Hughes makes it unlikely that the jury

would have discounted Hughes's testimony altogether,

absent some impeachment information of an entirely

different kind than that actually presented.”).

The defense did not cross-examine Ali-Ways at his

deposition or argue that it would have used the late-produced

evidence to do so. Apart from Ali-Ways' confusion about

whether a photo on his laptop was of his friend or of Oklah,

Oklah identifies no other ground for the jury to disbelieve

Ali-Ways' testimony. Finally, the email communications

among Oklah, Al-Dhari, and Ali-Ways further corroborated

Al-Dhari's and Ali-Ways' testimony implicating Oklah in

the conspiracy. In sum, the belated Brady/Giglio disclosures

did not prejudice Oklah's defense.

D. Napue Challenges

Invoking the Supreme Court's opinion in Napue v.

Illinois, 360 U.S. 264, Oklah argues that the Government

knowingly used false testimony when it introduced AlDhari's recorded deposition at trial because Al-Dhari lied:

(1) when he testified that he did not ask the FBI to help him

obtain a U.S. visa; (2) when he testified that he received no

benefits from the Government in exchange for his

cooperation; (3) when he misrepresented his role in the

Brigades as familial, tribal, and limited to financial funding;

and (4) when he described the Brigades' primary goal as

resisting the American occupation. We review de novo

Oklah's Napue claims. United States v. Renzi, 769 F.3d 731,

751 (9th Cir. 2014).

The government violates a defendant's due process

rights by obtaining a conviction through the knowing use of

false testimony. Henry v. Ryan, 720 F.3d 1073, 1084 (9th

76 USA V. ALAHMEDALABDALOKLAH

Cir. 2013). The government has a constitutional obligation

to correct false evidence even if it did not solicit it. Hayes v.

Brown, 399 F.3d 972, 983–84 (9th Cir. 2005) (en banc); see

Napue, 360 U.S. at 269. These principles are not limited to

direct evidence of a defendant's guilt; they also apply to

testimony that "goes only to the credibility of the witness”

because "[t]he jury's estimate of the truthfulness and

reliability of a given witness may well be determinative of

guilt or innocence.” Napue, 360 U.S. at 269.

To establish a Napue violation, Oklah must show: (1)

that the testimony or evidence presented at trial was

"actually false” or misleading; (2) that the Government knew

or should have known that it was false; and (3) that the

testimony was material, meaning that there is any

"reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Renzi, 769 F.3d at 751

(emphasis added) (quoting Houston, 648 F.3d at 814).25

Our materiality inquiry examines the "cumulative

effect” of all false and misleading evidence and testimony

presented at trial, Killian v. Poole, 282 F.3d 1204, 1209 (9th

Cir. 2002), as well as the effect of the prosecutor's

hypothetical correction of the false testimony in front of the

jury, see, e.g., Sivak, 658 F.3d at 916 (explaining that had a

witness's lies "been exposed,” the jury likely would have

rejected the remaining testimony); Jackson v. Brown, 513

F.3d 1057, 1077 (9th Cir. 2008) (examining "the

25 The Napue standard for materiality is notably less demanding than the

materiality standard for Brady claims, which asks whether there is a

reasonable probability that the result of the proceeding "would” have

been different had the materials been disclosed. See Jackson v. Brown,

513 F.3d 1057, 1076 (9th Cir. 2008) (describing the different standards

and explaining the process for analyzing Brady and Napue errors in

tandem).

USA V. ALAHMEDALABDALOKLAH 77

impeachment value that the prosecutor's correction of [the

witness's] testimony could have served” and "reject[ing] the

State's arguments that [the witness's] revealed perjury

would have had little impact on the jury”).

At the outset, the record does not support Oklah's

suggestions that Al-Dhari agreed to testify in exchange for

the FBI's agreement to help him obtain a visa and that his

description of the Brigades' primary goal was dishonest.

Oklah makes a stronger showing that the Government failed

to correct Al-Dhari's testimony that he did not receive

benefits and that Al-Dhari misrepresented his role in the

Brigades. We assume, without deciding, that Al-Dhari's

testimony on those subjects was false but conclude that these

purported Napue violations, considered collectively, do not

show a reasonable likelihood that the testimony could have

affected the jury's determination.

Oklah has failed to show that Al-Dhari lied when he

testified that he did not ask the FBI to assist him with

obtaining a United States visa. Oklah argues that this

testimony was false because the FBI "expressly requested

Al-Dhari be granted a waiver of his inadmissibility and

removed from the no-fly list to secure him a U.S. visa.” But

the consular materials do not show that Al-Dhari asked the

FBI to assist him. The only other evidence in the record

about Al-Dhari's communications with the FBI is contained

in the emails exchanged between Whitson and Al-Dhari, and

Whitson's trial testimony. The emails show Al-Dhari

thanking Whitson, and they certainly suggest that Al-Dhari

thought that Whitson could assist him, but Oklah cites no

record evidence in the emails or testimony establishing that

Al-Dhari asked the FBI to help him obtain his U.S. visa.

78 USA V. ALAHMEDALABDALOKLAH

Oklah separately argues that Al-Dhari lied when he

testified that the Brigades were primarily focused on

resisting the American occupation. In support, Oklah relies

on the Al-Dhari substitution in which the Government

conceded that the Brigades' goal was to expel "multinational

forces”—i.e., not just Americans. Oklah also argues that the

evidence showed that the Brigades targeted Al-Qaeda. We

are not persuaded. The Government's acknowledgment in

the substitution that the Brigades were fighting

"multinational forces” does not establish that Al-Dhari

testified falsely. To the contrary: the evidence showed that

the U.S. military was the main component of the

multinational force that the Brigades were attempting to

expel. The Government also presented expert testimony at

trial establishing that the Brigades had a unique and

persistent focus on expelling American forces from Iraq and

that, to the extent separate factions split off from the

Brigades to assist in the fight against Al-Qaeda, those

factions did not use IEDs. Al-Dhari's statements about the

Brigades' goals were consistent with this other evidence. At

most, Al-Dhari's testimony was "inaccurate or rebuttable,”

which is not enough to support a Napue claim.26 See Henry,

720 F.3d at 1084; see also Renzi, 769 F.3d at 752.

Oklah next argues that the Government violated Napue

by presenting Al-Dhari's testimony about his role in the

Brigades. In his deposition, Al-Dhari equivocated about his

26 In a footnote, Oklah asserts that Al-Dhari wrote an article that

appeared during trial in which he stated that he "fought Al-Qaeda on the

battlefield during the Anbar Awakening.” Assuming that Al-Dhari did

write the article, Oklah has not shown that he raised the article in the trial

court, or that his testimony about the Brigades' role was false or

misleading.

USA V. ALAHMEDALABDALOKLAH 79

role in the group, saying, among other things, that the

Brigades was an "armed resistance” and that individuals

outside of Iraq (which would include Al-Dhari) were not

members of the "armed movement.” But at other points in

his testimony, Al-Dhari admitted to aiding the Brigades

inside and outside of Iraq.27 The Government

27 The relevant portions of Al-Dhari's deposition testimony include the

following exchanges:

[Government Counsel] Q. What, if anything, did you

do to assist the 1920 Revolution Brigades?

[Al-Dhari] A. I do, first of all, my duties to Iraq when

we face occupation. And the Brigade of 1920, it was

Iraqi revolution. For that, I present all what I'm able

to—to present.

. . . .

Q. And were you yourself a member of the 1920

Revolution Brigades?

A. The 1920 Revolutionary Brigade is armed

resistance.

Q. And were you yourself a member of the group?

Could you repeat the question?

A. My answer was: The people in that 1920

Revolutionary Brigade are an armed movement, which

means that the people outside of Iraq are not a member

of the armed movement.

Q. Mr. Al-Dhari, how did you know what the

objectives of the 1920 Revolution Brigades were?

A. Because—because 1920 Revolutionary Brigade,

their goals were announced and written and also—

INTERPRETER: Please continue.

80 USA V. ALAHMEDALABDALOKLAH

acknowledged in the CIPA substitution that Al-Dhari was a

"commander” and that he played a "a political, religious, as

well as military role” in the Brigades.

Even assuming that Al-Dhari's testimony was untruthful

or misleading about his role in the Brigades and that the

Government was aware his testimony was false or

misleading, Oklah has not shown that this purported Napue

violation could have made a difference in the trial. First, it

is possible that Al-Dhari's role as a military leader in the

Brigades could have been helpful evidence to the

Government's case because the Government theory was that

Al-Dhari was one of the key Brigades co-conspirators.

Indeed, the Government argued in closing, over defense

objection, that Al-Dhari would "do whatever he could for the

Brigades . . . to use IEDs to attack the United States

soldiers.” Given that Al-Dhari's testimony made clear that

he was proud of his assistance to the Brigades, an additional

THE WITNESS: And that's through direct connection

between individuals. And because I am a member

from al-Dhari family, we consider ourself as honored

to be from the family of 1920 Revolutionary Brigade.

We are, as a family, we considered ourself as a part of

19 Revo—1920 Revolutionary Brigade.

BY [government counsel]:

Q. A moment ago, you described the types of

assistance you provided to the 1920 Revolution

Brigade. Did that assistance occur both inside Iraq as

well as outside Iraq?

A. Yes.

Later, on cross-examination, Al-Dhari acknowledged that he was "a

sheikh of a tribe,” but he denied that the Brigades gave him a title based

on his "role and assistance to them.”

USA V. ALAHMEDALABDALOKLAH 81

revelation about Al-Dhari's greater role in the Brigades was

unlikely to change the jury's view of Al-Dhari.

Nor does Oklah establish that additional evidence that

Al-Dhari received benefits from the Government in

exchange for his testimony could have had a material effect

on the outcome of the trial. Oklah argues that the consular

memos show that Al-Dhari received benefits for his

cooperation (removal from the no-fly list and a waiver of his

inadmissibility) and that Al-Dhari's testimony to the

contrary materially affected the trial because the jury sent a

note to the trial judge asking, "What benefits did [Al-Dhari]

receive from U.S.[?]”28 This Napue claim fails because

Oklah has not identified any evidence that Al-Dhari knew of

the FBI's input to the State Department concerning his visa

application and his status on the no-fly list. Because Oklah

has not established that Al-Dhari's testimony on this point

was untruthful, this Napue claim falters at step one.

Even if we infer that Al-Dhari knew about the FBI's

involvement in his visa process, the defense had ample

opportunity to question Al-Dhari about his relationship with

the FBI, to introduce his visa materials (the government

stipulated to their admissibility), and to argue to the jury, as

he does on appeal, that the Government "rolled out the red

carpet” for Al-Dhari by allowing him to travel to the United

States, by buying an expensive dinner for him when he met

with the FBI in Washington, D.C., and by facilitating his

meetings with members of Congress. In short, the jury had

substantial reasons to infer that Al-Dhari was biased in favor

of the Government to further his own political interests, and

28 The district court instructed the jury to "consider the evidence

presented in Court to answer those questions . . . and . . . it's your

memories of that evidence that governs.”

82 USA V. ALAHMEDALABDALOKLAH

the defense argued Al-Dhari's bias to the jury in its closing

argument. Oklah has not shown that hearing more about the

benefits Al-Dhari hoped to receive from the Government

could have affected the jury's impression of Al-Dhari or the

outcome of the trial.

Moreover, Al-Dhari's testimony was substantially

corroborated by other evidence in the record;29 that is the

most important consideration in our overall materiality

analysis for the Napue claims. Oklah argues that Al-Dhari's

false statements were material because his testimony "was

the only evidence” connecting Oklah to the Brigades' IED

operations against U.S. forces. That is plainly wrong. There

was a great deal of evidence collected from the Omar site

that connected Oklah to the manufacture of IEDs of the type

used against American forces, including identification

documents bearing Oklah's photo and fingerprints and IED

components bearing Oklah's fingerprints. Contrary to

Oklah's arguments that the Omar site contained the leftover

inventory from his innocuous electronics shop, the evidence

also included a document describing how to use a cell phone

to detonate an explosive device.

As explained, Al-Dhari's most significant inculpatory

statements were that Oklah shipped IEDs from China to the

Brigades and Abu Ghassan, and this testimony was

corroborated by Ali-Ways' testimony and by emails

admitted at trial. The defense did not cross-examine AliWays who, despite confusing a photo of a different Brigades

member with a photo of Oklah, did not equivocate when he

29 Unlike the materiality analysis for Oklah's Confrontation Clause

claim, Napue requires that we consider the "cumulative effect” of all

false and misleading testimony in light of the other evidence presented

to the jury. Killian, 282 F.3d at 1209.

USA V. ALAHMEDALABDALOKLAH 83

testified that Engineer Diya (Oklah) sought out Abu

Ghassan's replacement; displayed a gray-colored box for

Hamdan, the Brigades' replacement-leader, that Oklah

explained was for "explosions”; shipped IED components

from China; and sent electronic components for Abu

Ghassan and the Brigades' use.

Al-Dhari's and Ali-Ways' testimony was further

corroborated by Oklah's emails explaining how to protect

cell phone conversations from surveillance while discussing

"the resistance”; Oklah's email confirmation to Al-Dhari

and Ali-Ways that Oklah was sending 10 transmitters and

100 receivers from China (as Al-Dhari explained, this was a

necessary ratio because more receivers were destroyed in

explosions); and Oklah's emails about electronics and

DTMF boards. Finally, the Government presented extensive

forensic evidence tying Oklah to the Omar and Amiriya

sites, where investigators seized component parts for IEDs

similar to those used by the Brigades. In short, Oklah has

not shown a reasonable likelihood that any purported Napue

violations, even considered collectively, could have affected

the verdict.

E. Statements in Furtherance of the Conspiracy

Over Oklah's objection, the district court admitted AlDhari's testimony in which he repeated statements made by

Harith Al-Dhari, who was killed by Al-Qaeda in 2007.30

30 For example, the Government asked Al-Dhari whether Oklah used his

technical background to "improve the explosive devices,” and Al-Dhari

responded, "I heard from Harith that [Oklah] was helping in doing that.”

The Government also asked Al-Dhari if he had any conversations with

Oklah about the remote controls used for IEDs, and Al-Dhari testified:

"I'm not an engineer, but—but I know through general conversation with

Harith that [Oklah] was helping in this matter.”

84 USA V. ALAHMEDALABDALOKLAH

The district court admitted these statements as statements

made by a co-conspirator. Oklah argues that the district

court abused its discretion by admitting Al-Dhari's

testimony because the Government failed to establish that

Harith's statements were made in furtherance of a

conspiracy.

We review for abuse of discretion the district court's

decision to admit co-conspirator statements, and we review

for clear error the district court's underlying factual

determinations that a conspiracy existed and that the

statements were made in furtherance of that conspiracy.

United States v. Saelee, 51 F.4th 327, 339 n.4 (9th Cir.

2022).

Under Federal Rule of Evidence 801(d)(2)(E), the

statement of a co-conspirator is admissible against a

defendant if the government shows by a preponderance of

the evidence that: (1) "a conspiracy existed at the time the

statement was made”; (2) "the defendant had knowledge of,

and participated in, the conspiracy”; and (3) "the statement

was made in furtherance of the conspiracy.” United States

v. Bowman, 215 F.3d 951, 960–61 (9th Cir. 2000) (citing

Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

"Narrations of past events are inadmissible, but expressions

of future intent or statements that 'further the common

objectives of the conspiracy or set in motion transactions that

are an integral part of the conspiracy' are admissible under

Rule 801(d)(2)(E).” Id. at 961 (quoting United States v.

Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988)).

When a district court evaluates whether a particular

statement qualifies as a statement made in furtherance of a

conspiracy, "[t]he statement must be considered but does not

by itself establish . . . the existence of the conspiracy or

USA V. ALAHMEDALABDALOKLAH 85

participation in it.” Fed. R. Evid. 801(d)(2). Accordingly,

the government "must produce some independent evidence

which, viewed in light of the coconspirator statements,

establishes the requisite connection between the accused and

the conspiracy.” Saelee, 51 F.4th at 342 (quoting United

States v. Castaneda, 16 F.3d 1504, 1507 (9th Cir. 1994)).

The independent evidence of the conspiracy must be such

that, taken together with the alleged co-conspirator

statement, the statement can fairly be said to be

incriminating. Id. But the government "need show only a

slight connection with the conspiracy.” Id. (quoting

Castaneda, 16 F.3d at 1507).

The Government alleged that a conspiracy existed

among Oklah, Al-Dhari, Harith, Ali-Ways, Abu Ghassan,

and other members of the Brigades. Oklah contends that

Harith's statements did not further the conspiracy because

Al-Dhari claimed that he was not a member of the Brigades,

and therefore was not a member of the conspiracy. We agree

that Al-Dhari arguably disclaimed membership in the

Brigades in his deposition testimony, but the Government

presented ample evidence that he in fact was a Brigades

member who took numerous steps to further the group's

goals: Al-Dhari admitted that he supported the Brigades'

financial, medical, and logistical needs; he testified that he

helped Oklah get a visa to travel to China; and the jury heard

evidence showing that Oklah copied Al-Dhari on an email

that Oklah sent to the Brigades in which he discussed an

order of IED components. Al-Dhari testified that Harith

introduced him to Oklah, the evidence showed that Al-Dhari

knew Oklah was assisting the Brigades, and Al-Dhari

testified that he helped Oklah after learning that Oklah had

manufactured IEDs for the Brigades. Harith's statements to

Al-Dhari "further[ed] the common objectives of the

86 USA V. ALAHMEDALABDALOKLAH

conspiracy.” Bowman, 215 F.3d at 961 (quoting Yarbrough,

852 F.2d at 1535).

Even if Brigades members did not consider Al-Dhari to

be a member of the conspiracy, we have held that "[i]t is not

necessary that the statement be made to another member of

the conspiracy for it to come under rule 801(d)(2)(E). To be

'in furtherance' a statement must advance a common

objective of the conspiracy or set in motion a transaction that

is an integral part of the conspiracy.” United States v.

Williams, 989 F.2d 1061, 1068 (9th Cir. 1993) (citation

omitted) (allowing a third-party witness to testify, in a drug

prosecution, that a deceased co-conspirator asked whether

the witness wanted to buy drugs); United States v. ZavalaSerra, 853 F.2d 1512, 1516 (9th Cir. 1988) (rejecting

argument that the defendant's statement to a government

informant could not be in furtherance of a conspiracy

because "[i]t is well established that statements made by a

co-conspirator need not be made to a member of the

conspiracy to be admissible under rule 801(d)(2)(E)”).

Harith's statements satisfy the required standard because, as

explained, they were made in furtherance of the Brigades'

objectives.

Oklah next suggests that it is not apparent that "Harith

made the statements while the conspiracy was ongoing and

not at some later date.” This argument fails because Harith

made his statements before his death in 2007, and Al-Dhari

and Ali-Ways testified that Oklah's conspiracy with the

Brigades lasted through 2009 or 2010.

Oklah also contends that Harith's statements were the

"exclusive evidence” of Oklah's involvement in the

conspiracy and that the Government failed to present "some

additional proof” that Oklah knew of and participated in the

USA V. ALAHMEDALABDALOKLAH 87

conspiracy. See United States v. Silverman, 861 F.2d 571,

578 (9th Cir. 1988). This argument is contradicted by the

record because Ali-Ways' testimony and the emails admitted

at trial, including an email that Oklah sent Al-Dhari and AliWays with a list of IED components, tied Oklah to the

Brigades' plans to use—and actions to implement the use

of—IEDs.

Oklah further argues that the district court erred by

admitting statements about Oklah manufacturing IEDs that

Al-Dhari claimed he heard in "general conversation” with

Harith because such statements could not have been made

"in furtherance of the conspiracy.” This theory falters

because Harith's descriptions to Al-Dhari of Oklah's role in

the Brigades were "statements made to keep [a]

coconspirator[] abreast of [the] ongoing conspiracy's

activities,” United States v. Tamman, 782 F.3d 543, 553 (9th

Cir. 2015) (citation omitted), or were made to further the

Brigades' objectives, and thus plainly fall within the

Evidence Rule 801(d)(2)(E) co-conspirator hearsay

exemption.

Last, Oklah suggests there was insufficient evidence of

Al-Dhari's participation in the conspiracy at the time he

spoke to Harith. We disagree. Al-Dhari testified that he

assisted the Brigades inside and outside Iraq between 2005

and 2010, and in his trial testimony he associated himself

with the founding of the modern iteration of the Brigades.

The district court did not abuse its discretion by

admitting Al-Dhari's testimony recounting Harith's

statements because Harith made the statements in

furtherance of the Brigades' conspiracy.

88 USA V. ALAHMEDALABDALOKLAH

IV. Emails Exchanged with FBI Agent Whitson

Oklah argues that the district court erroneously excluded

emails between FBI Special Agent Whitson and Al-Dhari as

hearsay because the emails contained statements that were

relevant for non-hearsay purposes. Whitson was the

"primary point of contact” between the Government and AlDhari "for matters related to this case.” After Whitson

testified on direct examination that Al-Dhari was a member

of the Brigades and helped finance the group, defense

counsel unsuccessfully sought to admit more than 200 pages

of emails between Whitson and Al-Dhari on crossexamination.

We review de novo the district court's interpretation of

the hearsay rule, but review for abuse of discretion preserved

objections to the exclusion of evidence as hearsay. United

States v. Town of Colorado City, 935 F.3d 804, 807 (9th Cir.

2019). To obtain relief, a party appealing from the exclusion

of evidence must show that an erroneous evidentiary ruling

"more likely than not affected the verdict.” United States v.

Moalin, 973 F.3d 977, 1003 (9th Cir. 2020) (quoting United

States v. Pang, 362 F.3d 1187, 1992 (9th Cir. 2004)). We

review for plain error unpreserved objections to evidentiary

rulings. See United States v. Gomez-Norena, 908 F.2d 497,

500 (9th Cir. 1990).

When the Government objected to the Whitson–AlDhari emails on hearsay and vagueness grounds, defense

counsel offered a number of responses. Defense counsel

argued that the emails were relevant and admissible for

"impeachment,” "to show the nature,” "to show that

[Whitson] hoped to see [Al-Dhari] in the United States,” "to

establish when [Whitson] communicates with targets that his

statements are not going to be taken as literally true,” to

USA V. ALAHMEDALABDALOKLAH 89

show "that these are communications designed to provoke a

response,” and "to prove that the conversation took place.”

On appeal, the defense argues that the Whitson emails

were admissible because they showed "bias,” "motive,” or

an "effect on Al-Dhari,” but Oklah failed to raise any of

those theories of admissibility to the district court.

Ultimately, the court sustained the Government's hearsay

objections but allowed defense counsel to elicit testimony

that Al-Dhari and Whitson exchanged numerous emails in

which they interacted in a friendly manner, including while

Al-Dhari was in the United States.

Defense counsel failed to identify an applicable nonhearsay ground—such as the effect on the listener—under

which some of Whitson's statements in emails may have

been admissible, nor did the defense seek to admit a more

tailored selection of the emails. Rather, as noted, the defense

filed a notice in the district court seeking to admit more than

200 pages of email correspondence between Whitson and

Al-Dhari to establish Al-Dhari's "motive for cooperating

with the United States.” The arguments regarding a nonhearsay purpose come too late. See United States v. Sims,

617 F.2d 1371, 1377 (9th Cir. 1980) ("The presentation of

additional evidentiary theories on appeal is inconsistent

'with the salutary purpose of the timeliness requirement to

allow the trial judge to make an informed ruling based on the

issues as framed by the parties before the evidence is . . .

excluded.'” (omission in original) (quoting United States v.

Lara-Hernandez, 588 F.2d 272, 274 (9th Cir. 1978))).31

31 See also Robert P. Mosteller et al., McCormick on Evidence § 51 (8th

ed. 2020) ("If the proponent counsel specifies a purpose for which the

proposed evidence is inadmissible and the judge excludes, counsel

90 USA V. ALAHMEDALABDALOKLAH

Even if Oklah had made an offer of proof sufficient to

preserve these objections, we see no colorable argument that

the exclusion of the emails more likely than not affected the

jury's verdict. Whitson provided extensive live testimony

that made the jury aware of his flattery of and friendliness

with Al-Dhari. On appeal, Oklah has not identified any

specific portions of the excluded emails that would have had

significantly higher impeachment value than Whitson's

statements at trial. Because Oklah has not satisfied the lower

standard for preserved objections to evidentiary rulings, he

necessarily cannot show plain error, as required to obtain

reversal based on the trial court's decision not to admit the

compilation of the Whitson–Al-Dhari emails.

V. Christopher Graham's Expert Testimony

Oklah argues that the district court abused its discretion

by admitting Christopher Graham's testimony, and by

refusing to grant a mistrial or to strike Graham's testimony,

because the Government violated then-governing Federal

Rule of Criminal Procedure 1632 and the Due Process Clause

cannot complain of the ruling on appeal although the evidence could

have been admitted for another purpose.”).

32 In April 2022, Federal Rule of Criminal Procedure 16(a)(1)(G) was

amended to "ensure that parties receive adequate information about the

content of the witness's testimony and potential impeachment.” Fed. R.

Crim. P. 16 advisory committee's note to 2022 amendment. These

changes took effect December 1, 2022, long after the conclusion of

district court proceedings in this case. See Proposed Amends. to Fed. R.

Crim. P. 16, 340 F.R.D. 810, 811 (2022) (specifying that the amended

rule "shall govern in all proceedings in criminal cases [commenced after

December 1, 2022] and, insofar as just and practicable, all proceedings

then pending,” but making no provision for retroactive application); see

also United States v. Mercado, 349 F.3d 708, 710 (2d Cir. 2003)

(Sotomayor, J.) ("[T]he determination as to whether to apply a new

USA V. ALAHMEDALABDALOKLAH 91

by failing to disclose Graham's opinions and their bases

before trial; and because Graham's opinions were not

reliable as required by Federal Rule of Evidence 702. The

Government called Graham at trial to provide expert

testimony on the Government's physical evidence. The

district court concluded that Graham was "qualified to offer

opinions regarding the likely intent of the components found

at the Omar Street site,” and on appeal Oklah does not

contest Graham's qualifications. We review for abuse of

discretion the district court's discovery and evidentiary

rulings under Rules 16 and 702, but review de novo claims

of embedded legal or constitutional error. See United States

v. Holguin, 51 F.4th 841, 852 (9th Cir. 2022), cert. denied,

143 S. Ct. 2509 (2023); United States v. Mohamud, 843 F.3d

420, 432 (9th Cir. 2016). We review for abuse of discretion

denial of a motion for mistrial. United States v. Gallenardo,

579 F.3d 1076, 1081 (9th Cir. 2009).

A. Federal Rule of Criminal Procedure 16

At the time of the pretrial discovery in Oklah's case,

Rule 16(a)(1)(G) required the government to provide, at the

defendant's request, "a written summary of any [expert]

testimony,” describing: (1) "the witness's opinions”; (2) "the

bases and reasons for those opinions”; and (3) "the witness's

qualifications.” Fed. R. Crim. P. 16(a)(1)(G) (2018). The

purpose of this provision was "to permit more complete

pretrial preparation by the requesting party” and to "provide

procedural rule in a pending case involves consideration of the effect, if

any, that the rule will have on substantive rights, in light of the

expenditure of judicial resources and the inconvenience to the parties

that may result from the retroactive application of the new rule.”). Oklah

has not argued that the newly amended Rule 16(a)(1)(G) applies

retroactively to his case on direct review.

92 USA V. ALAHMEDALABDALOKLAH

a fair opportunity to test the merit of the expert's testimony

through focused cross-examination.” Fed. R. Crim. P. 16

advisory committee's note to 1993 amendment. The

provision was "not intended to create unreasonable

procedural hurdles.” Id.

Oklah contends that the district court abused its

discretion by admitting Graham's expert testimony because

Graham's testimony was inconsistent with the

Government's pretrial disclosures, which included 68

unsigned reports from the FBI's Terrorist Explosive Device

Analytical Center (TEDAC), in which the FBI analyzed the

physical evidence collected from Omar and Amiriya. We

agree that the Government initially produced a vague notice

and voluminous and disorganized disclosures (including the

TEDAC reports) that the district court described as "bare

conclusions and enormous data dumps.” But the district

court ordered the Government to provide revised notices that

more specifically summarized the testimony of the

Government's experts, in line with Rules 16 and 702. On

appeal, the parties agree that the Second Renewed Notice

(SRN), filed January 5, 2018, was the operative expert

disclosure for Graham's testimony at trial.

In five pages comprising approximately 1,500 words, the

relevant portion of the SRN set forth Graham's

qualifications, summarized his opinions and the bases for

them, and explained why his testimony would be reliable and

relevant. The SRN specifically disclosed Graham's

opinions that "[t]he Omar Street site was an IED switch

factory,” that certain "modified components implied

research and development for IED switches,” and that

"Omar Street was very significant because of both the size

. . . and the recovery of several unusual items.” The SRN

also noted that the Government's pretrial disclosures

USA V. ALAHMEDALABDALOKLAH 93

included a PowerPoint presentation with two videos Graham

prepared to explain the operation of remote-controlled IEDs

to the jury. The Government also played a PowerPoint that

Graham prepared to explain to the jury the steps to produce

custom-built printed circuit boards.33

The SRN was significantly more detailed than what we

and other circuits have deemed sufficient to satisfy the

operative version of Rule 16. In United States v. MendozaPaz, we held that a high-level one-paragraph summary of a

drug valuation expert's testimony was sufficient to satisfy

Rule 16, even though the disclosure was made twelve days

before trial. 286 F.3d 1104, 1111 (9th Cir. 2002). The

summary in Mendoza-Paz listed the agent's "contacts” with

various government agencies, criminal organizations, and

defendants as the basis for his testimony, and the

Government also provided a resume and a written report on

which the expert relied upon, in part. Id. In United States v.

Lipscomb, the First Circuit held that a notice was enough

when it disclosed that officers would be testifying as experts

on the basis of their "training and experience” and that they

would "make conclusions regarding the presence of firearms

and the connection between the quantity of crack cocaine

seized from the defendant and drug distribution, and that

those conclusions were based on the officers' experience

working in the police department.” 539 F.3d 32, 38 (1st Cir.

2008). In reaching that conclusion, the First Circuit

observed that Rule 16's goal is to provide "'a fair

opportunity to test the merit of the expert's testimony

33 The parties stipulated that "numerous DTMF-11 circuit boards were

recovered in Iraq from post-blast IED events during the time period 2005

to 2007,” and that "based on components, functionality and trace layout,

many of these boards were very similar to” a completed DTMF-11 board

found at Omar.

94 USA V. ALAHMEDALABDALOKLAH

through focused cross-examination'” and emphasized that

"the bases for the detectives' conclusions were adequately

probed by defense counsel on cross-examination with no

particular difficulty.” Id. (quoting Fed. R. Crim. P. 16

advisory committee's note to 1993 amendment).

Oklah argues that the SRN was defective because it

incorporated the Government's prior defective disclosures

and several unsigned TEDAC reports that conflicted with

Graham's trial testimony. He argues that the SRN continued

to incorporate all of the TEDAC reports because it began

with a general statement that the Government "incorporates

by reference its prior notices” and included a footnote in the

section discussing Graham's anticipated testimony that

stated, "A more detailed description of the corresponding

TEDAC reports from the engineers' area of testimony was

previously provided to the defense.”

First, we note that defense counsel used the TEDAC

reports to impeach Graham's testimony over the course of

several days. Defense counsel had the opportunity to

conduct, and in fact did conduct, a lengthy and detailed

cross-examination. Second, as the district court recognized,

neither the SRN nor the previous disclosures stated that

Graham agreed with everything contained in the TEDAC

reports or that he adopted them as his own opinions. The

defense raises nine examples from Graham's testimony that

it characterizes as "either undisclosed or directly contrary to

the pretrial disclosures,” but these examples do not show that

the SRN failed to give Oklah adequate notice of Graham's

testimony. Despite the highly technical nature of Graham's

expert testimony, the disclosures gave defense counsel a fair

opportunity to test the merits of Graham's opinions through

focused cross-examination. See Fed. R. Crim. P. 16 advisory

committee's note to 1993 amendment. Defense counsel had

USA V. ALAHMEDALABDALOKLAH 95

access to the relevant TEDAC reports, used them

extensively during cross-examination, and leveraged

inconsistencies in closing argument.

Oklah also briefly argues that the admission of Graham's

testimony violated his right to due process. But the

authorities he cites are inapposite. See United States v.

Robinson, 44 F. Supp. 2d 1345 (N.D. Ga. 1997); United

States v. Tin Yat Chin, 476 F.3d 144 (2d Cir. 2007).

In Robinson, the district court excluded the

government's expert's testimony because its initial Rule 16

disclosure was entirely "conclusory” and failed to provide

the basis for its expert's opinion, and its untimely amended

disclosure was so incomplete that it rendered the defense's

expert "unable to review the basis of the [government

expert's] opinion.” 44 F. Supp. 2d at 1346. By contrast, as

explained, the amended disclosure here was sufficient.

In Tin Yat Chin, the Second Circuit observed that the

government engaged in "sharp practice, unworthy of a

representative of the United States” when it did not disclose

its intent to call an expert witness to rebut the disclosed

testimony of the defense's expert, and the court cautioned

that "such an ambush might well violate due process” in an

"appropriate case.” 476 F.3d at 146 (quoting Wardius v.

Oregon, 412 U.S. 470, 476 (1973) ("It is fundamentally

unfair to require a defendant to divulge the details of his own

case while at the same time subjecting him to the hazard of

surprise concerning refutation of the very pieces of evidence

which he disclosed to the State.”)). In contrast to Tin Yat

Chin, Oklah has not alleged that the Government failed to

disclose its intent to call Graham.

96 USA V. ALAHMEDALABDALOKLAH

B. Federal Rule of Evidence 702

Invoking Federal Rule of Evidence 702, Oklah contends

that the district court abused its discretion by admitting

Graham's expert testimony without first determining

whether it was reliable. Under our precedent, a district court

"abdicates its gatekeeping role, and necessarily abuses its

discretion, when it makes no reliability findings” for expert

testimony, but the district court has "flexibility” in "how to

determine reliability.” United States v. Valencia-Lopez, 971

F.3d 891, 898 (9th Cir. 2020) (emphasis omitted). The

reliability inquiry must focus on the basis for the expert's

opinion, Daubert v. Merrell Dow Pharms., Inc., 43 F.3d

1311, 1316 (9th Cir. 1995), which may include "personal

knowledge or experience,” Kumho Tire Co. v. Carmichael,

526 U.S. 137, 150 (1999). The district court must make its

"gatekeeping” findings explicit on the record, and an

implicit finding of reliability does not suffice. United States

v. Irons, 31 F.4th 702, 716 (9th Cir. 2022).

Oklah argues that we should remand to allow the district

court to decide whether any of Graham's testimony satisfied

Rule 702 because the "district court made no findings as to

the reliability of any of [Graham's] opinions set forth in the

TEDAC reports.” We decline to do so. The TEDAC reports

were not offered as a summary of Graham's testimony, nor

did the SRN indicate that he adopted all of them. Before

trial, the district court acknowledged that Oklah challenged

Graham's proposed expert testimony as "not based on

reliable information.” But after considering Graham's

"training, knowledge, and experience, as well as his planned

testimony,” the district court explicitly overruled Oklah's

objection and ruled that Graham's testimony would likely be

admissible. After Graham testified at trial, the defense

moved to strike Graham's testimony and for a mistrial, and

USA V. ALAHMEDALABDALOKLAH 97

the district court denied the motions. On this record, Oklah

has not shown that the district court failed to fulfill its

gatekeeping role, which included determining that Graham's

testimony was reliable, as required by Rule 702.

Oklah separately contends the district court abused its

discretion by admitting Graham's testimony that Omar was

"an IED switch factory” because the reliability of this

testimony had not been established. We disagree. The

district court concluded that Graham had "sufficient

familiarity with IEDs” such that he was "qualified to offer

opinions regarding the likely intent of the components found

at the Omar Street site,” and that Graham had "substantial

experience working with [IEDs],” making him "qualified to

explain to the jury how [IEDs] operate.”

Oklah argues that Graham's opinion concerning the

purpose of the Omar site was insufficiently supported

because Graham did not review the entirety of the evidence

that was collected at the site.34 In making this argument,

Oklah analogizes to cases in which the Third, Sixth, and

Seventh Circuits have noted that reliable conclusions about

statistical data must be based on a representative sample.

34 At the time of the raid, the entire neighborhood around Omar had been

abandoned and there were no witnesses arrested who could have

provided testimony about the purpose of the operation there. But

physical evidence from the site was seized and analyzed at CEXC and

TEDAC. This physical evidence included remote-controlled IED

switches, and the materials, tools, and components needed to

manufacture them. The evidence indicated that IED switches were

manufactured on site. Graham's testimony was critical because he

explained the function of the components found at Omar, and the parties

stipulated that a completed DTMF-11 circuit board found at Omar was

"very similar” to "numerous DTMF-11 circuit boards” retrieved after

IED attacks.

98 USA V. ALAHMEDALABDALOKLAH

See EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749, 754

(6th Cir. 2014); DeKoven v. Plaza Assocs., 599 F.3d 578,

581 (7th Cir. 2010); United States v. Dent, 149 F.3d 180,

190–91 (3d Cir. 1998). Oklah argued to the jury that

Graham examined the evidence collected by the U.S.

military with "tunnel vision.”

The cases Oklah cites are inapt because the challenged

testimony here—Graham's impressions of the purpose of the

Omar operation based on his background and experience

with IEDs—was not a conclusion supported by a data

sample. Rather, his impressions were supported by his

experience working as a lab manager at CEXC—a DoD

laboratory where investigators classified and analyzed

evidence collected from explosions that targeted U.S. forces

in Iraq; his studies of and conversations with insurgents who

built and used IEDs; his review of photographs of the

evidence collected at the Omar site; and his examination of

the items and documents found there. This evidence and

Graham's experience were sufficient to support his

conclusion that Omar was an IED switch factory. See

Kumho Tire, 526 U.S. at 150.

Oklah also argues that Graham gave unreliable

testimony that DTMF-11 boards were never sold

commercially and lacked a non-IED purpose. This argument

fails because it misstates Graham's testimony. Graham

testified that the DTMF-11 circuit boards and modified JDQ

boards found at Omar were "identical to multiple . . . boards

attached to explosives and found at postblast events,” and

that "DTMF boards were never” documented by CEXC as

"being used for any other application than in IEDs” before,

during, and for several years after his time at CEXC. This

testimony was supported by Graham's own experience at

CEXC and his review of evidence seized at Omar. On this

USA V. ALAHMEDALABDALOKLAH 99

record, we conclude the district court did not abuse its

discretion when it declined to strike Graham's testimony as

unreliable.

VI. The Absence of James Dempsey at Trial

Oklah argues that the Government's failure to produce

James Dempsey as a witness at trial violated his

constitutional rights to due and compulsory process,

reprising an argument that he made in a post-trial motion.

Dempsey was one of three DoD-affiliated witnesses the

defense requested the Government's assistance in locating.

Documents produced in discovery indicated that Dempsey

was part of the Sensitive Site Exploitation (SSE) team that

deployed to Omar and collected evidence there. The defense

sought Dempsey's testimony because a 2011 interview

report documented that Dempsey told an FBI investigator

that he "recalled a ledger book” found at Omar that

"mentioned the computer shop,” and that he "was told the

Iraqis learned” Oklah left the shop about a month before the

SSE team arrived. The defense anticipated that Dempsey's

testimony would have corroborated its theory that Oklah ran

a legitimate electronics business in Iraq before leaving for

China and that the items found at Omar comprised the

abandoned inventory from his business.

We review de novo whether a constitutional violation

occurred because the Government did not produce Dempsey,

United States v. Bahamonde, 445 F.3d 1225, 1228 n.2 (9th

Cir. 2006), but review for clear error the district court's

factual findings underlying its decision to deny the motion

to dismiss, United States v. Velarde-Gavarrete, 975 F.2d

672, 674 (9th Cir. 1992). The Compulsory Process Clause

and the Due Process Clause both guarantee "a meaningful

opportunity to present a complete defense.” United States v.

100 USA V. ALAHMEDALABDALOKLAH

Stever, 603 F.3d 747, 755 (9th Cir. 2010) (citation omitted).

Although "criminal defendants have the right to the

government's assistance in compelling the attendance of

favorable witnesses at trial,” Ritchie, 480 U.S. at 56, "the

Government is under no obligation to look for a defendant's

witnesses, in the absence of a showing that such witnesses

were made unavailable through the suggestion,

procurement, or negligence of the Government,” United

States v. Ballesteros-Acuna, 527 F.2d 928, 930 (9th Cir.

1975) (internal quotation marks and citation omitted).35

In an attempt to satisfy this standard, Oklah accuses the

Government of "hiding” Dempsey. But the record does not

support this contention. The Government initially identified

Dempsey only as a "Cooperating Source (CS),” but it

disclosed Dempsey's name to the defense more than seven

months before trial, on June 14, 2017. Three months later,

on September 12, 2017, defense counsel emailed a subpoena

for several witnesses, including Dempsey, to DoD. Oklah

does not explain why DoD was expected to serve the

subpoena on his behalf. We have not identified any

authority that required DoD to do so. See 32 C.F.R. § 257.4

(explaining that "[i]t is DoD policy to accept service of

process directed to the Secretary of Defense or a Secretary

of a Military Department in his official capacity,” but

35 When a defendant seeks the testimony of an eyewitness to the

"actions” or "offenses” charged in an indictment whom the government

does not intend to call, the court may presume that the witness's

testimony would be favorable. United States v. Cadet, 727 F.2d 1453,

1469 (9th Cir. 1984). Because Dempsey did not witness the "actions” or

"offenses” charged in the indictment—Oklah's participation in the

Brigades' conspiracy—Cadet does not apply.

USA V. ALAHMEDALABDALOKLAH 101

making no reference to other DoD personnel).36 In addition,

defense counsel did not seek to have the subpoenas served

by any approved means, such as by the U.S. Marshal.37

In the district court, defense counsel argued that because

the defense "understood that the Government was fulfilling

their obligation to find and bring James Dempsey to court,”

defense counsel decided not to bring the issue to the attention

of the Government or the court until two weeks before filing

Oklah's motion to dismiss. It was not until several weeks

after the trial began that defense counsel first informed the

Government that it was having difficulty locating three

witnesses, including Dempsey. The Government promptly

attempted to contact these witnesses, and two of the three

wound up testifying at trial. The Government stated that an

FBI agent also tried to contact Dempsey through each of the

telephone numbers and email addresses it had on file, but it

was unable to reach Dempsey. Those facts do not support

36 A DoD deputy general counsel declared that he was "not aware of any

DoD policy or directive that authorizes DoD to accept service of

process.”

In the district court, Oklah invoked Department of Defense Directive

5405.2, but this DoD policy explicitly states that it "is intended only to

provide guidance for the internal operation of the Department of Defense

and is not intended to, does not, and may not be relied upon to create any

right or benefit, substantive or procedural, enforceable at law against the

United States or the Department of Defense.” 32 C.F.R. Pt. 516, App.

C(B)(6).

37 See U.S. Marshals Serv., Subpoenas,

https://www.usmarshals.gov/what-we-do/prisoners/operation/prisonerguideline/subpoenas [https://perma.cc/5Y4A-6SSL] (explaining that

"[t]he United States Marshal . . . serves subpoenas . . . for defendants of

public defenders”).

102 USA V. ALAHMEDALABDALOKLAH

an inference that government suggestion, procurement, or

negligence caused Dempsey's absence at trial.

Oklah also argues that Dempsey was a confidential

informant, triggering a duty for the Government to use

reasonable efforts to produce him to testify at trial. See

United States v. Montgomery, 998 F.2d 1468, 1476 (9th Cir.

1993) (articulating the government's heightened obligation

to use "reasonable efforts” to produce a witness to testify at

trial if the witness served as a confidential informant). This

argument fails for two independent reasons.

First, as the district court recognized, Dempsey was "not

a confidential informant.” The record does not show that the

Government was "trying to maintain . . . the secrecy of the

source,” and it is uncontested that the Government provided

Dempsey's name to the defense well before trial. In fact, the

defense sought Dempsey's testimony for the sole purpose of

following up on a 2011 interview report documenting that

Dempsey told an FBI investigator about the ledger book

found at Omar and that Dempsey had been told by an

unidentified third party that Oklah had left Omar about a

month before the raid. The Government represented to the

court that it protected Dempsey's identity as an

accommodation to avoid adversely affecting his

employment at DoD, not as a means of concealing the source

of his testimony from the defense. See United States v.

Black, 767 F.2d 1334, 1337 (9th Cir. 1985) ("The

defendant's right of access is not violated when a witness

chooses voluntarily not to be interviewed.”). In any event,

the Government disclosed Dempsey's identity seven months

in advance of trial. The Government was not required,

however, to produce Dempsey for trial. See United States v.

Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980) (per curiam).

USA V. ALAHMEDALABDALOKLAH 103

Second, even if Dempsey could be viewed as a

confidential informant, Oklah's due process argument would

fail because the district court's finding, that "the government

tried and did everything they could to find [Dempsey],” was

not clearly erroneous. That finding, and the Government's

successful efforts to secure the testimony of the other two

witnesses at the last minute, support the district court's

conclusion that the Government made "reasonable efforts”

to secure Dempsey's testimony.38 We conclude that the

district court did not err by denying Oklah's motion to

dismiss based on the Government's failure to produce James

Dempsey.

VII. Department of Defense Search

On appeal, Oklah renews his Brady argument arising

from the district court's refusal to order the Government to

search the entire Department of Defense for relevant

documents.

38 See Montgomery, 998 F.2d at 1473 ("Courts typically find the

government's efforts to secure the presence of a confidential informant

unreasonable when the government acts with negligence or intentional

avoidance.”); see also United States v. Burt, 76 F.3d 1064, 1067 (9th Cir.

1996) (noting reasonable efforts where the Government contacted people

who knew the witness, tried all her telephone numbers, but failed to

locate her), reh'g granted, opinion withdrawn on other grounds, 83 F.3d

1156 (9th Cir. 1996); United States v. Suarez, 939 F.2d 929, 932 (11th

Cir. 1991) (finding no duty for the government to produce a confidential

informant at trial who could not be located "after [a] diligent search”);

Fitzpatrick v. Procunier, 750 F.2d 473, 476 (5th Cir. 1985) (same);

United States v. Hart, 546 F.2d 798, 799–800 (9th Cir. 1976) (en banc)

(finding reasonable efforts where the government told DEA informants

that they must be present for trial "in very strong terms” but failed to

detain them as material witnesses).

104 USA V. ALAHMEDALABDALOKLAH

Three days before trial, the defense requested that the

Government turn over all information indicating that: (1) the

Brigades were fighting anyone other than the U.S. military;

(2) the Brigades were assisting American forces; or (3)

American military forces had paid the Brigades for

assistance. The Government refused this request, arguing

that it was both overbroad and untimely. Over the

Government's objection, the district court ordered the

Government to search for the requested information and

provide a written response because the court deemed it

relevant to Oklah's theory that he may have been aligned

with a subset of the Brigades that had not targeted

Americans.

Two weeks into trial, the Government made a responsive

disclosure, explaining that it had searched FBI records,

records from the U.S. Attorney's Office, and DoD databases

to which the U.S. Attorney's Office had access. The

Government also reported contacting U.S. Central

Command (CENTCOM), the military authority for U.S.

forces in the Middle East and parts of Africa, Asia, and the

Indian Ocean. The Government later relayed that it was told

the request would require a search of all DoD holdings,

including several DoD subcomponents, followed by

filtering, review, and declassification.

Defense counsel filed a motion to compel the search the

Government had described. The Government opposed. The

Government explained that it searched the DoD databases on

which it primarily relied for its investigation, including: (1)

the CEXC-Iraq website, which had been archived after

CEXC was disbanded in 2010; (2) the Combined

Information Data Network Exchange database, which is a

database developed for theater-wide use in Iraq and

Afghanistan; and (3) the U.S. Army National Ground

USA V. ALAHMEDALABDALOKLAH 105

Intelligence Center, which is DoD's "primary producer of

ground forces intelligence.” As to the requests the

Government directed to CENTCOM, the Government

represented that CENTCOM "is not an investigative

agency,” but in response to Oklah's discovery requests, the

Government had from time to time "queried CENTCOM for

documents that could not be located” on the databases to

which the Government had access.

The district court denied Oklah's motion in an oral

ruling. The court held that, although the Government had an

ongoing responsibility under Brady to determine whether

there was reason to believe the requested information could

be found within CENTCOM, there was no basis for

concluding that the Government had an obligation to search

CENTCOM, "particularly if [the Government] ha[d] to get

approval [to] do so.” The court also ordered the Government

to explain to the defense "exactly, in writing, what

CENTCOM is and why [the Government] searched it” on

earlier occasions or why a further search would be

"burdensome.”

Under Brady, the Government must produce to the

defense exculpatory or impeaching evidence in the

prosecutor's possession. See Bagley, 473 U.S. at 675–77.

Information is in the prosecutor's "possession” if it is held

by members of the prosecution team, such as investigating

agents, or if it is held by other executive branch agencies and

the prosecutor has "knowledge of and access to” the

evidence. United States v. Bryan, 868 F.2d 1032, 1036 (9th

Cir. 1989); see Kyles, 514 U.S. at 437–38. The prosecutor

is deemed to have "knowledge” not only of information that

the prosecutor personally knows, but also of information that

the prosecutor "could have learned.” United States v. Cano,

934 F.3d 1002, 1023 (9th Cir. 2019) (quoting Carriger v.

106 USA V. ALAHMEDALABDALOKLAH

Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc)). "The

prosecutor will be deemed to have knowledge of and access

to anything in the possession, custody or control of any

federal agency participating in the same investigation of the

defendant.” Bryan, 868 F.2d at 1036. As to those agencies

that are not involved in the investigation, the "prosecutor

need not comb the files of every federal agency which might

have documents”; rather, the obligation to disclose "turn[s]

on the extent to which the prosecutor has knowledge of and

access to the documents.” United States v. Zuno-Arce, 44

F.3d 1420, 1427 (9th Cir. 1995) (quoting Bryan, 868 F.2d at

1036).

Oklah argues that the Government was obligated to

search the entirety of DoD because DoD participated in the

investigation of the Brigades and because the prosecutor had

"knowledge of and access to” the requested DoD documents.

We are not persuaded that the Government failed to meet its

Brady obligations. Oklah's arguments conflate the DoD

components that participated in the investigation with the

entirety of DoD.

In Cano, we concluded that the FBI and the DEA were

outside of the investigating team for a criminal prosecution

that had been investigated and initiated by Homeland

Security Investigations, notwithstanding the fact that the FBI

and DEA, like the prosecuting U.S. Attorney's Office, were

components of the Department of Justice. Cano, 934 F.3d

at 1024. DoD is the largest agency in the U.S. government,

overseeing 3.4 million service members and civilians.

About, U.S. Dep't of Def., https://perma.cc/99P4-RNWX

(last visited Jan. 23, 2023). It comprises 33 agencies and

subcomponents. See, e.g., DoD Employers, DoD Civilian

Careers, https://perma.cc/8J8X-JD6J (last visited Jan. 23,

2023). Oklah's suggestion that DoD, as a whole, was a

USA V. ALAHMEDALABDALOKLAH 107

"participating agency” cannot be squared with our

conclusion in Cano.

We apply a "case-by-case approach” to determine

whether the prosecution had the requisite knowledge and

access. Cano, 934 F.3d at 1025. Under the circumstances

of this case, we hold that the Government did not have

"access to” the entirety of DoD merely because it had the

ability to send queries to CENTCOM. First, CENTCOM

told the prosecution that Oklah's request would require a

search of nothing less than all DoD components. That fact

suggests that CENTCOM could not readily produce

responsive documents. Oklah also fails to rebut the

Government's showing that it had access only to those

databases directly related to Oklah's prosecution, that DoD

did not affirmatively grant the prosecution team access to the

many databases and sources of information that Oklah

wanted the Government to search, and that the prosecution

team was relegated to requesting CENTCOM's assistance to

obtain any responsive materials. See Bryan, 868 F.2d at

1036 ("[G]iving 'government' its broadest reading by

expanding it to include all federal agencies (such as the IRS)

would not only wreak havoc, but would give the defense

access to information not readily available to the

prosecution.” (alteration in original) (citation omitted)).

Finally, our court has recognized that non-participating

agencies may have valid concerns over revealing sensitive

information in cases wholly unrelated to the agencies' own

area of expertise, and "the agencies may be reluctant to

cooperate in a particular investigation if it means opening

their files in other investigations.” Cano, 934 F.3d at 1025.

The latter concern applies here because a significant amount

of discovery was subject to the CIPA process.

108 USA V. ALAHMEDALABDALOKLAH

"[A] federal prosecutor need not comb the files of every

federal agency which might have documents regarding the

defendant in order to fulfill his or her obligations . . . .”

Bryan, 868 F.2d at 1036. We conclude that the

Government's decision not to order a full search of

CENTCOM's databases did not violate Brady.

39

VIII. Reassignment on Remand

Remand for resentencing is warranted because the

parties agree that the convictions on Counts Three and Four

must be vacated in the wake of the Supreme Court's decision

in Davis. See 139 S. Ct. at 2336. Oklah argues that this case

should be reassigned to a different district judge on remand.

We disagree. The standard for reassignment on remand is

demanding, and "[a]bsent unusual circumstances,

resentencing is to be done by the original sentencing judge.”

United States v. Acosta-Chavez, 727 F.3d 903, 910 (9th Cir.

2013) (alteration in original) (quoting United States v.

39 Months after this case was submitted for decision, defense counsel

submitted a letter pursuant to Fed. R. App. P. 28(j) and a related motion

for judicial notice discussing documents that counsel had recently

discovered and arguing that these documents are material to

the defense's Brady arguments. We grant the motion for judicial notice,

but none of the documents identified by the defense changes our analysis

of these issues. The scope of a prosecutor's search obligations turns on

her "knowledge of and access to” the relevant evidence, Bryan, 868 F.2d

at 1036, and the documents identified in the defense letter and motion do

not rebut the Government's showing that it searched all DoD databases

to which it had access and that it was relegated to requesting

CENTCOM's assistance for any additional responsive materials. Oklah

thus failed to show that the Government's failure to search CENTCOM

violated his rights under Brady.

USA V. ALAHMEDALABDALOKLAH 109

Waknine, 543 F.3d 546, 560 (9th Cir. 2008)). To determine

whether reassignment is appropriate, we consider:

(1) whether the original judge would

reasonably be expected upon remand to have

substantial difficulty in putting out of his or

her mind previously expressed views or

findings determined to be erroneous or based

on evidence that must be rejected, (2)

whether reassignment is advisable to

preserve the appearance of justice, and (3)

whether reassignment would entail waste and

duplication out of proportion to any gain in

preserving [the] appearance of fairness.

United States v. Walker River Irrigation Dist., 890 F.3d

1161, 1173 (9th Cir. 2018) (quoting United States v. Rivera,

682 F.3d 1223, 1237 (9th Cir. 2012)).

The 18 U.S.C. § 924(c) and (o) convictions in Counts

Three and Four were predicated on the conspiracies charged

in Counts One and Two. These qualified as "crimes of

violence” only pursuant to the statute's residual clause,

which the Supreme Court invalidated as unconstitutionally

vague approximately two years after the district court

entered judgment in this case. See Davis, 139 S. Ct. at 2336.

The district court denied Oklah's pretrial motion to dismiss

Counts Three and Four. It also denied Oklah's renewed

motion to dismiss those counts, which Oklah made after

trial. Although Oklah's motion to dismiss relied on the same

arguments that the Supreme Court embraced in Davis, this is

the only reversible error we identify in the district court's

rulings.

110 USA V. ALAHMEDALABDALOKLAH

Oklah points to other isolated statements and rulings to

support his arguments that the district court failed to

familiarize itself adequately with the record, subjected the

parties to different rules, and facilitated improper ex parte

communications. We disagree. The record in this case spans

nearly fifteen years, the work of two district judges and trial

teams, hundreds of exhibits, and tens of thousands of pages

of trial submissions. The trial alone took almost two months.

Those months certainly included long days for all concerned.

Our review of the record demonstrates that the district court

was thorough, careful, and fair. In a trial like this one, small

mistakes here and there are inevitable. But absent unusual

circumstances, they are not grounds for ordering a case

reassigned on remand. We reject Oklah's contention that the

district court's handling of the case was unfair or biased.

The objections that Oklah lodges fall far below the standard

for reassignment to a new judge. Oklah has not shown that

our ordinary practice of remanding to the sentencing judge

would create an appearance of unfairness, or that

reassignment would not entail waste or duplication.

Conclusion

This case demonstrates the importance of and the

challenges inherent in prosecuting foreign nationals for

violent acts perpetrated against the United States abroad.

Federal courts can handle these prosecutions in public

proceedings that are fair and efficient, but such cases raise

complicated questions about jurisdiction and

extraterritoriality, classified information, witness

availability, expert testimony, and discovery. Reviewing

Oklah's many arguments, we remain mindful that our laws

and Constitution apply to this case just as they do to all direct

criminal appeals. See Boumediene v. Bush, 553 U.S. 723,

798 (2008) ("Liberty and security can be reconciled; and in

USA V. ALAHMEDALABDALOKLAH 111

our system they are reconciled within the framework of the

law.”).

We affirm Oklah’s convictions on Counts One and Two, reverse his convictions on Counts Three and Four, and

remand to the district court for proceedings consistent with

this opinion.



AFFIRMED in part; REVERSED and REMANDED

in part. Each party shall bear its own costs on appeal.