Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 02-28-2024

Case Style:


Case Number: 18-10435

Judge: Morgan Christen


Plaintiff's Attorney: The United States Attorney’s Office in San Francisco

Defendant's Attorney:

Click Here For The Best San Francisco, California Criminal Defense Lawyer Directory


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
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.
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
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
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
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
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.
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.
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.
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.
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).
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
• 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);
• 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
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
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
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
Americans” and they did not want others involved to be
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
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
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
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.
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.
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.
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.
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
*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
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
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
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
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] . . .
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.
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.
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
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
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).
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
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)).
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
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),
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
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
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
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.
731, 739 (9th Cir. 2002); see Restatement (Fourth) of
Foreign Relations Law § 402(1) & cmts. e–k (Am. L. Inst.
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.
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
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
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”).
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
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,
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
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
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
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
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.”
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
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
“[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,
Jamal Wahad Al-Dari was a commander in
the Battalion of the 1920’s Revolution
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
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
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)
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
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
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
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.
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.
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.
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.,
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
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
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-
(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
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.
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
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
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.
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
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
“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).
purposes “turns on the scope of the cross-examination that
. . . [was] permitted.” Id.
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.
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.
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
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
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
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.
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
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
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
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
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
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
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.
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).
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
(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
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
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.
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
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
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.
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.”
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.”
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.
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.”
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
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.
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
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
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’
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
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
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
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.
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
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
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
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.
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
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.
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
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.
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
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.
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
record, we conclude the district court did not abuse its
discretion when it declined to strike Graham’s testimony as
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.
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.
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
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.
37 See U.S. Marshals Serv., Subpoenas, [] (explaining that
“[t]he United States Marshal . . . serves subpoenas . . . for defendants of
public defenders”).
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).
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
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
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).
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
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
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
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.
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
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.,
(last visited Jan. 23, 2023). It comprises 33 agencies and
subcomponents. See, e.g., DoD Employers, DoD Civilian
Careers, (last visited Jan. 23,
2023). Oklah’s suggestion that DoD, as a whole, was a
“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.
“[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.
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.
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
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.
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
our system they are reconciled within the framework of the


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.

in part. Each party shall bear its own costs on appeal.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case