UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

AHMED SALIM FARAJ ABU KHATALLAH, Case No. 14-cr-00141 (CRC) also known as “Ahmed Abu Khatallah,” also known as “Ahmed Mukatallah,” also known as “Ahmed Bukatallah,” also known as “Sheik,”

Defendant.

MEMORANDUM OPINION AND ORDER

Ahmed Salim Faraj Abu Khatallah was tried and convicted of several counts related to

his involvement in the September 2012 attack on a United States diplomatic compound in

Benghazi, Libya. The Court sentenced Khatallah to 22 years of imprisonment in June 2018. On

appeal, the D.C. Circuit upheld the convictions but reversed the sentence on the ground that the

Court did not adequately justify its downward departure from the Sentencing Guideline’s

recommendation. The case was thus remanded for resentencing, which will take place next

month.

Ahead of that resentencing, the government has moved to present two new categories of

evidence that were not introduced at trial or the original sentencing: (1) cellular site information

ostensibly capturing Khatallah’s location the night of the attack; and (2) testimony recounting

statements made to the Federal Bureau of Investigation (“FBI”) by a witness detained in Libya

implicating Khatallah in the deadly assault. The Court will deny this request for a second bite at

the apple for three reasons. First, under existing D.C. Circuit precedent, the government cannot introduce new evidence at resentencing on factual issues that were fully aired at the first

sentencing. Second, even if the government is justified in advocating for a yet unrecognized

exception to this rule when the evidence could not have been discovered earlier with the exercise

of due diligence, the government has not proven that this proposed exception would apply here.

And third, even absent any procedural impediment, the late-breaking evidence would not alter

the Court’s sentencing calculus because it primarily involves acquitted conduct and, even then,

the Libyan witness’s proffered statements raise numerous reliability concerns.

I. Background

In June 2014, Khatallah was charged with 18 offenses related to the attacks on the U.S.

Special Mission in Benghazi and a nearby intelligence facility known as the Annex. Broadly

speaking, the government alleged that Khatallah, as a leader of an extremist militia called

Ubaydah Bin Jarrah, directed the attacks because he objected to the United States’ intelligence

presence in Benghazi following the overthrow of former Libyan dictator Muammar Gaddafi.

Khatallah’s trial began in early October 2017 and lasted seven weeks. Evidence at trial

showed that, around 9:45 p.m. on September 11, 2012, dozens of armed men breached the main

gate of the Special Mission compound that housed a contingent of State Department personnel

and, that night, U.S Ambassador to Libya J. Christopher Stevens. The intruders fired at security

forces and set blaze to Mission buildings. Ambassador Stevens and a State Department Foreign

Service officer sought refuge in a safe room but later died of smoke inhalation while trying to

escape the living quarters. Hours after the initial assault, militants used small arms, machine

guns, rocket-propelled-grenade launchers, and mortars to attack the Annex about a mile away.

Two State Department security officers were killed by the mortar fire at the Annex. Three other

2 U.S. government personnel were seriously injured repelling the attackers before reinforcements

arrived and transported the remaining American officers to safety in Tripoli.

After five days of deliberation, the jury convicted Khatallah of (1) providing material

support and resources to terrorists, in violation of 18 U.S.C. § 2339A; (2) conspiring to do the

same, also in violation of § 2339A; (3) maliciously destroying and injuring a federal building—

namely, the Special Mission—where said building was a dwelling or where the life of a person

was placed in jeopardy, in violation of

; and (4) carrying a firearm during a

crime of violence, in violation of

(c). The jury acquitted Khatallah on the other

fourteen charges. Among them were murder and attempted murder of the four U.S. personnel

who died during the attacks, killing those four individuals during an attack on a federal facility,

and damaging federal property by fire or explosives. The jury also declined to make certain

special findings, including that Khatallah’s provision of material support “resulted in death,”

which would have increased his statutory maximum and minimum sentences. At sentencing on

June 28, 2018, the Court calculated the Guidelines-recommended sentence as life plus ten years

but varied downward to impose a 22-year term of imprisonment and five years of supervised

release. The Court found this variance was warranted, in part, to avoid reliance on acquitted

conduct.

Khatallah appealed his conviction, and the government cross-appealed the length of his

sentence. The D.C. Circuit rejected Khatallah’s challenges to the convictions but agreed with the

government that the “sentence [was] substantively unreasonably low in light of the gravity of his

crimes of terrorism,” holding that the Court’s “decision to disregard conduct for which Khatallah

was acquitted” did not, on the record presented, justify the downward departure. United States v.

3 Khatallah,

(D.C. Cir. 2022). The Circuit accordingly remanded the case for

resentencing,

which the Court has scheduled for September 26, 2024.

Ahead of that hearing, the government has moved to introduce two forms of purportedly

“new evidence” that it did not present at the original sentencing: (1) cellular site data that, it

claims, establishes the location of Khatallah’s cell phone during the first wave of the attack on

the Mission and the subsequent siege of the Annex; and (2) information provided to the FBI in

2020 by an imprisoned Libyan national regarding Khatallah’s alleged planning of and

involvement in the attacks. See Mot. Resentence at 4 n.2; Proffer of Testimony. The latter

evidence would be offered through testimony by an FBI agent who interviewed the witness.

Khatallah objects to this request for “a second bite at the apple.” Def. Br., ECF No. 586, at 1.

Under established D.C. Circuit precedent, he says, “the government may not at resentencing

introduce evidence on factual issues that were already litigated (and on which it lost) at the

original sentencing.”

The government retorts that the Court is not prohibited from

considering this new evidence that “was not available at the original sentencing” despite the

“exercise of due diligence.” Gov’t Br., ECF No. 587, at 2.

After receiving the parties’ briefs and holding a hearing on the matter, the Court directed

the government to proffer the evidence concerning the FBI informant that it would present at

resentencing and explain why, in its view, this evidence was undiscoverable before the original

sentencing and why it is reliable. Having reviewed these materials, including a classified

defense submission in response to the government’s proffer, the Court will now resolve this

dispute.

4 II. Analysis

The government’s request to introduce this “new evidence” at Khatallah’s resentencing

fails three times over. First, under binding D.C. Circuit precedent, a party cannot introduce new

evidence of old facts regarding issues that were fully litigated at the original sentencing. Second,

even if the D.C. Circuit were to deviate from its existing caselaw and follow some sister circuits

in recognizing an exception to this general prohibition when the new evidence could not have

been uncovered prior to the first sentencing with the exercise of “due diligence,” the government

has not carried its burden of establishing that the evidence it now proffers was truly unavailable

the first go around. Third, even assuming the Court could consider this new evidence, it would

not change the sentencing calculus because (1) the evidence is being used to prove acquitted

conduct and (2) the proffered statements from the Libyan witness, which would not be subject to

cross examination, lack sufficient indicia of reliability to be considered on matters that were

central to Khatallah’s trial. The Court will discuss each basis for refusing to permit this new

evidence in turn.

A. D.C. Circuit Precedent

Under established D.C. Circuit precedent, a party may not introduce new evidence at

resentencing that was relevant to and litigated at the initial sentencing (unless that evidence

involves facts that postdate the first proceeding). But that is exactly what the government seeks

to do here: proffer new evidence to prove old allegations regarding events that occurred years

before Khatallah’s sentencing in June 2018.

The D.C. Circuit has reiterated on multiple occasions that a remand for resentencing is

not an open invitation for a complete do over. In United States v. Leonzo, for example, the

Circuit had to “decide whether on remand the government may offer new evidence to support its

5 claim of” a significant monetary loss caused by the defendant’s default on a fraudulently

obtained loan to prove that a sentencing enhancement was warranted.

(D.C.

Cir. 1995). It answered no: The “government had the burdens of production and persuasion,”

and the court saw “no reason why it should get a second bite at the apple” when “[n]o special

circumstances justified, or even explained, the government’s failure to sustain these burdens.”

The Circuit reaffirmed this restriction two years later in United States v. Whren while

rejecting the practice of “de novo resentencing” adopted by several sister circuits.

(D.C. Cir. 1997). “[R]equiring the parties to raise all relevant issues at the original

sentencing hearing serves both equity and efficiency,” the Circuit reasoned.

“Each party gets

early notice of the other’s position, and the district court can resolve all material issues early

on—when the record is fresh in mind—and in a single proceeding, thereby minimizing the scope

of any second proceeding[.]”

at 959–60. Whren emphasized that this more restrictive

approach aligned with Leonzo’s holding that the government “could not offer new evidence in

support of the sentencing level for which it had unsuccessfully argued at the original sentencing

hearing” where no “special circumstances” justified its failure to meet its mark the first time.

at 959 (quoting Leonzo,

).

Leonzo and Whren thus confirmed that, in general, parties cannot introduce new evidence

at resentencing “absent special circumstances.” But neither case colored in the details of what

constitutes a “special circumstance” that would warrant a reprieve from this general restriction. 1

1 Whren included a limited statement of when new evidence could be introduced in concluding: “We hold, therefore, that upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision—whether by the reasoning or by the result.”

. As later cases would make clear, though, the exception is not quite that narrow.

6 Then came United States v. Blackson,

(D.C. Cir. 2013). To illuminate this

murky area, then-Chief Judge Garland opened his analysis in Blackson “by collecting in one

place this circuit’s rules regarding the scope of a district court’s resentencing authority under a

remand order that, like the order in this case, contains no express instructions regarding which

issues the district court may consider.”

. He synthesized the D.C. Circuit’s precedent on

the matter as follows:

First, as we said in United States v. Lyons and reaffirmed in United States v. Whren, when this court vacates one count of a multi-count conviction, the district court on remand should begin by determining whether that count affected the overall sentence and, if so, should reconsider the original sentence it imposed. Second, under Whren, the district court may also consider “such new arguments or new facts as are made newly relevant by the court of appeals’ decision—whether by the reasoning or by the result.” Third, the district court is further authorized to consider facts that did not exist at the time of the original sentencing: for example, in United States v. Rhodes we held that the district court could consider rehabilitation efforts that the defendant had undertaken since receiving his original sentence.

Beyond these three categories of inquiry, however, the district court does not generally have authority to consider other objections at resentencing—unless the remanding court has expressly directed otherwise. Accordingly, unlike the rule in some circuits, in this circuit the district court generally does not have authority to resentence a defendant de novo.

(citations omitted). 2 Blackson therefore cataloged three exceptions to the prohibition on new

evidence or arguments at resentencing and emphasized that, beyond these recognized carve outs,

district courts are generally precluded from considering new evidence or arguments unless the

Circuit expressly says otherwise in its remand order. Since Blackson, the D.C. Circuit has

repeated this framework for how district courts should conduct resentencing. See United States

2 Blackson also noted in a footnote that, “[s]ince Whren, [the Circuit had] also held that the resentencing court may consider arguments not raised at the original sentencing when the argument’s relevance to the sentence was contingent on a circumstance that did not materialize at the original sentencing but that did come to pass by the time resentencing occurred, and where the defendant establishes good cause for not having raised the argument sooner.”

at 40 n.2 (citations omitted).

7 v. Hunter,

(D.C. Cir. 2016) (“[O]n remand for resentencing the sentencing

judge may ordinarily consider only limited factors. In Blackson, we explained that the factors

include assessment of the vacatur’s effect on the vacated sentence, ‘new arguments or new facts

as are made newly relevant by the court of appeals’ decision . . . [and] facts that did not exist at

the time of the original sentencing.’” (quoting Blackson,

)).

A faithful application of Blackson resolves the present dispute. None of the exceptions

that Blackson identified apply to the evidence that the government is seeking to introduce here.

Khatallah’s conduct during the attacks on the Mission and Annex were plainly relevant to, and

fully litigated at, trial and the original sentencing. Indeed, they were the focal point of both

proceedings. And none of the evidence the government proffers relates to “facts that did not

exist at the time of the original sentencing.” Blackson,

. Rather, all of the

evidence relates to Khatallah’s conduct before and during that horrific night in 2012. Having

failed to introduce this evidence at the original sentencing, the government cannot do so now.

The government attempts to escape this straightforward application of existing D.C.

Circuit precedent by arguing there is another exception Blackson forgot to mention: when

“despite the exercise of due diligence, the evidence was unavailable at the original sentencing.”

Gov’t Br. at 5. The argument runs like this. Leonzo recognized that “special circumstances” can

excuse the failure to present evidence at the initial sentencing. See

. Citing

Leonzo, the Second Circuit in United States v. Archer agreed that “where special circumstances

make the prohibition on new evidence unfair, the district court may admit it.”

(2d Cir. 2011). One such “special circumstance,” the Second Circuit held, is “where the

evidence was, for a good reason, unavailable” at the first proceeding.

Archer’s elaboration

of the “special circumstances” rule has been echoed by several other circuits. See United States

8 v. Dawn,

, 798–99 (8th Cir. 2012); United States v. Villalobos,

(5th Cir. 2018). And, without citing Archer, other circuits have indicated that the government

can present new evidence on remand “if it has tendered a persuasive reason why fairness so

requires.” United States v. Johnson,

(3d Cir. 2009). Meanwhile, a handful of

other circuits have applied the so-called “mandate rule”—which governs when a district court

can deviate from an appellate decision—to the resentencing context and suggested that district

courts may consider “significant new evidence [that was] not earlier obtainable through due

diligence [but] has since come to light.” See, e.g., United States v. Lassiter,

(4th Cir. 2024); United States v. Dutch,

, 1345–46 (10th Cir. 2020). 3 Stitching

these threads together, the government argues that one of Leonzo’s “special circumstances” that

can justify the introduction of new evidence at resentencing is where the evidence could not have

been discovered earlier with the exercise of “due diligence.” Gov’t Br. at 6–7. The government,

of course, recognizes that Blackson did not include this “due-diligence exception” to the

restriction on new evidence in its framework. See

at 7 n.3. Yet it emphasizes that the

“Blackson-court’s opinion does not mention Leonzo” and reiterates the familiar rule that one

panel cannot overrule another.

Thus, it concludes, Leonzo’s “special circumstances” test

lives on and—according to a choir of other circuits—includes situations where the evidence was

unavailable at the original sentencing despite the exercise of “due diligence.” See

3 In full, most circuits have coalesced around a “mandate rule” that district courts may depart from an appellate court’s mandate when there is “(1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) [if] blatant error from the prior sentencing decision would result in serious injustice if uncorrected.” United States v. Webb,

(10th Cir. 1996). “Although the D.C. Circuit has not had an opportunity to address the question,” courts in this District have applied this framework on occasion. See United States v. Trabelsi, No. 06-cr- 89 (RDM),

, at *8 (D.D.C. Mar. 13, 2020).

9 That might be a reasonable train of thought, but the Court cannot hop aboard for the ride.

Blackson is the current law in this Circuit, and its comprehensive framework does not recognize

a “due diligence” exception. In forging this framework, the Blackson court did not overlook

Leonzo. Though it is true that Blackson did not mention Leonzo by name, it cited Whren

extensively—which, in turn, placed Leonzo at the heart of its analysis. These are therefore not

conflicting lines of precedent, as the government suggests. There is one line, and it ends with

Blackson. Nor is it the case that Blackson conflicts with or overrules Leonzo. As noted above,

neither Leonzo nor Whren defined what counts as a “special circumstance,” and they never

openly embraced the “due diligence” exception that the Second Circuit read into this language in

Archer. This Court is accordingly in no position to say that Blackson erred when “collecting”

the Circuit’s caselaw and specifying when district courts can consider new evidence on remand.

.

To be sure, it is possible that the D.C. Circuit would revise this framework to carve out a

“due diligence” exception if squarely presented with the question. 4 Returning to the “equity and

efficiency” concerns that drove this Circuit to reject de novo resentencing in the first place, see

Whren,

, it is not necessarily unfair to allow a party to submit evidence that was

not previously available. And strict enforcement of the “due diligence” exception would not

permit parties to submit their evidence in a piecemeal fashion when it could have been presented

all at once. Yet it is far from foreordained that the D.C. Circuit would choose this path. Even if

some other circuits have embraced a due-diligence exception, the D.C. Circuit has had no qualms

about breaking from its brethren and imposing more stringent restrictions on what information

4 Indeed, prior to Blackson, one panel cited Archer in passing with seeming approval (although it did not express any view on this “due diligence” exception). See United States v. Fair,

(D.C. Cir. 2012).

10 and arguments can be presented at resentencing. See Blackson,

(“Accordingly,

unlike the rule in some circuits, in this circuit the district court generally does not have authority

to resentence a defendant de novo.”). Moreover, from a policy perspective, there are efficiency

concerns cutting against the government’s proposed due-diligence exception. The D.C. Circuit’s

rejection of de novo resentencing was based, in part, on a desire to avoid reopening litigation on

remand and having district judges decide evidentiary matters when the record is no longer “fresh

in mind.” Whren,

. Permitting parties to introduce new evidence of old facts at a

resentencing that occurs years after the trial could clash with that purpose. Furthermore, as this

case perfectly showcases, deciding whether evidence was truly undiscoverable with due

diligence can be a complicated task that itself can require a mini-trial into how the evidence

came to light. If efficiency is the goal, then, it might be better to keep the door closed. Cf.

United States v. McCoy,

(D.C. Cir. 2002) (en banc) (listing the

“[r]equirements of additional fact finding” and “the extent that resolution of the contention

required the district court to conduct any factual analysis” as factors weighting against finding

“good cause” to permit presentation of new arguments under Federal Rule of Criminal Procedure

32(b)(6)(D)).

This Court does not express any view on the wisdom of the “due diligence” exception

and will not speculate on whether, down the road, the D.C. Circuit might revise the rules on the

books. What matters for present purposes is that, under Blackson’s framework, the D.C. Circuit

does not recognize this “due diligence” exception. This Court is bound to apply that binding

precedent and deny the government’s request to introduce this new evidence on matters that were

already aired during the prior outing.

11 B. The “Due Diligence” Exception

Even if this Circuit did permit parties to submit new evidence at resentencing that was

not available at the original sentencing despite the exercise of due diligence, the government has

not carried its burden of showing that this exception would apply here.

Cellular Site Data. This is readily apparent when it comes to the cellular site data. The

issue of geolocation through cell-tower data was hotly contested both in this case and the related

case of United States v. Mustafa Muhammad Muftah Al-Imam, No. 17-cr-213 (D.D.C.). In fact,

the same cellular site data that the government proffers here was introduced at Mr. Al-Imam’s

sentencing hearing back in 2020. See

United States’ Memorandum in Aid of Sentencing,

ECF No. 267, at 19–20 (D.D.C. Jan. 13, 2020);

United States’ Supplemental Memorandum

in Aid of Sentencing, ECF No. 272, at 6–8 (D.D.C. Jan. 21, 2020); see also Mot. Resentence at 4

n.2.

The government acknowledges as much but nonetheless contends that it lacked access to

this cellular site information prior to Khatallah’s sentencing in June 2018. “While that data was

collected by [a non-governmental entity called] OpenCelliD in December 2016,” it claims, “the

prosecution team in this matter . . . did not access that information before May 2019”—well after

the original sentencing in this case. Gov’t Br. at 5. In the government’s telling, it only came by

this information after the fact by way of “serendipity.” Hrg Tr. at 6. The Al-Imam prosecutors

were reportedly researching phone records in anticipation of his sentencing in 2019 and reached

out to an FBI agent who “just happened to know about [the OpenCelliD] database” and “looked

to see if there was actually any data on the cell towers in Benghazi.”

Before then, to the

government’s knowledge, no one inside the federal government was aware that this information

was available online. See Gov’t Br. at 5.

12 That is not enough to show that this cellular site information was unavailable with the

exercise of due diligence. By the government’s admission, this information was posted on a

publicly available website in December 2016. That was 10 months before Khatallah’s trial and

18 months before his sentencing. There is no reasonable account for why the prosecutors in this

case could not have uncovered this information during that period given that it was apparently

available with just a few strokes of the keypad and clicks of a mouse. The government protests

that the “exercise of due diligence cannot require the government to be aware of everything that

is posted on the internet.” Gov’t at 7–8. Maybe so, but that misses the point. The use of cellular

site data to pinpoint Mr. Khatallah’s cellphone calls on the night of the attack was a major issue

in this case, so one might have expected the government to be on the lookout for this data. And

from what the Court can glean, this information was hiding in plain sight all along. OpenCelliD

is a well-known trove of cell-site information, appearing “among the top five websites returned

by a search for ‘cellular site data’ on Google.” Reply, ECF No. 589, at 7. Accordingly, when

the Al-Imam prosecutors sought to find this information, a simple call to the FBI did the trick.

That’s not mere “serendipity”; it’s the sort of prosecutorial leg work that one would expect in a

high-profile case such as this. It is thus not that this evidence couldn’t be discovered with due

diligence but rather that the government didn’t discover it despite ample opportunity to do so

prior to the original sentencing. That’s no reason to throw open the doors to this evidence now.

Libyan Witness Statements. Whether the government could have obtained statements

from the Libyan national who has since linked Khatallah to the attacks is less clear. The

government indicates that a component of the government learned that the witness was in

“foreign” (presumably Libyan) custody in December 2018 approximately six months after

Khatallah’s original sentencing. Supplemental Proffer at 2 n.2. The FBI learned of the witness a

13 year later,

and proceeded to interview him four times throughout 2020, Proffer at 2.

According to memoranda of those interviews, the witness implicated Khatallah in the attacks on

both the Mission and Annex. The memos also reveal, however, that the witness had been in

Libyan custody since his arrest in July 2016, some 14 months prior to Khatallah’s trial. Proffer,

Ex. 3 at 6. The government does not explain why it was in the dark about the witness until

December 2018. Nor does it suggest why its sprawling, multi-agency investigation of the attacks

did not unearth the witnesses before then. So, to the extent there is a “due diligence” exception

to the rule against de novo resentencing, the government has not carried it burden to establish its

application here.

C. Acquitted Conduct and Unreliability

Apart from any procedural barrier, the Court finds that the newly proffered evidence

would not alter the analysis at resentencing because (1) it is primarily being introduced to prove

acquitted conduct and (2) the Libyan witness’s proffered statements, presented without cross-

examination, raise too many reliability concerns to be considered on such a central issue.

Acquitted Conduct. As recounted above, the Court varied downward from the Guidelines

range at the original sentencing “to avoid reliance on acquitted conduct.” Sentencing Tr. at

60:1–2. Though the D.C. Circuit found that the Court had not justified the extent of the

downward departure, it did not object to the Court’s decision to exercise its discretion to ensure

that the sentence was not predicated on acquitted conduct—a common practice that the

government did not oppose. See Khatallah,

; see also

(“[T]he

government has conceded the point” that “district courts are permitted to vary downward in order

to avoid sentencing defendants on the basis of acquitted conduct.”). Judge Millett went one step

further in her concurrence, articulating her position that “district courts not only can vary

14 downward to sidestep reliance on acquitted conduct, but . . . should do so based on bedrock legal

principles.”

(emphasis in original). The Court agrees with Judge Millett, at least in the

context of this case, and intends to stand by its previous decision to steer clear of acquitted

conduct during this redux, for the reasons explained at length at the prior sentencing.

That calls into question the relevance of the government’s “new evidence,” which is

plainly aimed, in large part, at proving now what the government failed to prove beyond a

reasonable doubt at trial. The combination of cellular site data and the Libyan witness’s

statements seek to show that Khatallah was involved in the planning and execution of the initial

attack on the Mission, which resulted in the deaths of Ambassador Stevens and another State

Department official, and the subsequent attack on the Annex leading to two more American

casualties. But the jury acquitted Khatallah on all counts related to these deaths and found that

he was not responsible for the attack on the Annex. See

(“The jury then acquitted

Khatallah on all but four of the eighteen charges against him, and it made an express finding that

Khatallah’s actions did not result in death.”);

at 629 n.8 (“The jury also acquitted Khatallah of

Count 17, which was for ‘destroying and injuring dwellings and property, that is, the Annex,’ so

we assume that he correctly reads the verdicts to at least rule out his criminal responsibility for

what happened after the second wave of the attack.” (emphasis in original)). To the extent this

evidence aims to relitigate these jury findings, they fall on deaf ears because the Court still does

not plan on punishing Khatallah for acquitted conduct.

The government retorts that “the new evidence that [it] seeks to present at resentencing”

does not go “exclusively to establishing conduct for which the defendant was acquitted.” Gov’t

Br. at 10 (emphasis added). “Specifically,” it says, “the cellular site information establishing the

time of the defendant’s arrival at the Mission on September 11, 2012, does not implicate

15 acquitted conduct at all.”

And “the information obtained from the Libyan national primarily

addresses defendant’s role in planning and conducting the attack on the mission” along with his

“role in providing coordinates for the mortar attack on the Annex.”

at 10–11.

This leads the Court back to the same place though. The jury acquitted Khatallah of any

conduct relating to the attack on the Annex, so that line of argument is a dead end. The Court

also already incorporated Khatallah’s involvement in orchestrating the attack when it applied

sentencing enhancements for “terrorism” and Khatallah’s “leadership” role. United States v.

Abu Khatallah,

, 197–202 (D.D.C. 2018) (applying U.S.S.G. § 3A1.4 and

§ 3B1.1). In doing so, the Court found by a preponderance of the evidence that Khatallah was

not just a low- or mid-level participant in the attack, but rather sat “atop the structure” of at least

one of the groups that executed the assault. Id. at 200. On appeal, the Circuit held that these

enhancements were not necessarily at odds with the “jury’s acquittal of Khatallah for the deaths

that occurred” because Khatallah could have led a portion of the attack on the Mission but still

not have been responsible for the killings.

. These enhancements will therefore

still apply at resentencing. Nevertheless, there comes a point when finding that Khatallah

quarterbacked the Mission attack conflicts with the jury’s finding that he was not responsible for

any deaths that night. The proffered evidence about Khatallah’s efforts to hatch and orchestrate

the attack seek to have the Court cross that line and ignore the jury’s verdict. The Court declines

that invitation. The same goes for the cellular site data purportedly placing Khatallah at the

Mission during the first attack. In the D.C. Circuit’s view, the “best explanation of the verdicts”

is that “Khatallah was vicariously responsible for the first wave of the attack on the Mission

where American lives were in danger but was not responsible for . . . the deaths that resulted

from the first wave.”

. Given that status quo, the government’s effort to introduce

16 additional evidence of Khatallah’s involvement in the first wave of the attack serves little

purpose beyond placing Khatallah on the hook for deaths during that stage of the assault.

Thus, even if this new evidence could be introduced on remand, it is exceedingly unlikely

that it would affect Mr. Khatallah’s sentence because it primarily seeks to pin him with acquitted

conduct.

Unreliability. Finally, even if there were a recognized legal basis to consider the Libyan

witness’s statements to the FBI at the resentencing hearing, the Court would hesitate to credit

them. At the outset, the statements have never been subject to cross-examination and would not

be at sentencing hearing. To be sure, the Court may rely on unconfronted, hearsay evidence at

sentencing. But to do so on an issue that was at the heart of the defendant’s trial, and on which

he was acquitted, would run counter to the adversary process in a way the Court is not prepared

to accept.

Cross-examination is particularly important here, moreover, because the statements

themselves raise more than a few credibility concerns. First, the witness indicated that he “faced

numerous charges in the Libyan system and expected to receive a life in prison,” but “would

prefer to be tried in the United States.” Proffer, Ex. 3 at 6. Second, the witness claimed to have

participated in the attacks as a member of the prominent militia group Ansar Al Sharia, including

by being present at the Mission, yet his name apparently never surfaced in the government’s

extensive pre-trial investigation and the government has not offered any evidence corroborating

his claimed participation. Third, the statements contain several apparent inconsistences. As the

government acknowledges, for example, the witness had to retract a prominent accusation

against the defendant as the interviews progressed: that he overheard Khatallah communicate

the coordinates for the mortar attack on the Annex to other attackers. Proffer at 5 n.6. These

17 issues raise a legitimate question whether the witness may have felt motivated to incriminate the

U.S. government’s main suspect in the attacks (and perhaps other potential defendants down the

road) in order to improve his own situation in Libyan prison.

The Court agrees with the government that the witness’s statements are self-

incriminatory and appear voluntary, which generally bolsters his reliability. It is also true that

the statements are specific, detailed, and corroborated in some respects by facts established at

trial (of which the witness may or may not have been independently aware). But those factors do

not outweigh the reliability concerns noted above and in the defense’s classified submission,

especially in the absence of cross examination.

III. Conclusion

For the foregoing reasons, the Court hereby denies the government’s motion to admit

new evidence at resentencing.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: August 29, 2024

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