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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Case No. 14-cr-00141 (CRC)

AHMED SALIM FARAJ ABU
KHATALLAH,
also known as “Ahmed Abu Khatallah,”
also known as “Ahmed Mukatallah”
also known as “Ahmed Bukatallah”
also known as “Sheik,”
Defendant.

OPINION AND ORDER
Before the Court is the Government’s Motion in Limine to Admit Evidence of Other
Crimes [ECF # 216]. The Government seeks to admit five categories of other acts evidence: (1)
evidence of the defendant’s preparation for the September 2012 attack on the U.S. Mission and
Annex in Benghazi, Libya, (2) evidence of the defendant’s anti-American animus, (3) evidence
of the defendant’s relationships and history with his alleged co-conspirators, (4) evidence of the
defendant’s familiarity with and access to mortars, and (5) evidence that the defendant increased
security and hid out following the capture of suspected terrorist Abu Anas al-Libi by American
forces in the fall of 2013. The Court will grant the motion in part and deny it in part, as
discussed in more detail below.
Federal Rule of Evidence 404(b) prohibits the introduction of “[e]vidence of a crime,
wrong, or other act” to “prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Such other acts evidence is, however,
admissible “for another purpose, such as proving motive, opportunity, intent, preparation, plan,

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knowledge, identity, absence of mistake, or lack of accident.” Id. The D.C. Circuit has
explained that “[a]lthough stated as a restriction, the Rule is actually one of ‘inclusion rather than
exclusion.’” United States v. Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002) (quoting United States
v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). Even if the other acts evidence is admissible
under Rule 404(b), it is still subject to the requirements of Federal Rule of Evidence 403, which
allows for the exclusion of evidence “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.”
1.

Evidence of the defendant’s preparation for the attack.

First, the Government seeks to introduce evidence of the alleged preparations for the
attack on the Mission and Annex, contending that this evidence is intrinsic to the conspiracy
charge. The defendant disagrees, arguing that the evidence is not intrinsic.
The D.C. Circuit recognizes an intrinsic/extrinsic distinction to determine the
applicability of Rule 404(b). “Acts ‘extrinsic’ to the crime charged are subject to Rule 404(b)’s
limitations; acts ‘intrinsic’ to the crime are not.” United States v. McGill, 815 F.3d 846, 879
(D.C. Cir. 2016) (per curiam). In other words, Rule 404(b) “does not apply to ‘evidence . . . of
an act that is part of the charged offense’ or of ‘uncharged acts performed contemporaneously
with the charged crime . . . if they facilitate the commission of the charged crime.’” Id.
(alterations in original) (quoting Bowie, 232 F.3d at 929). However, the D.C. Circuit has
“rejected the rule embraced by some of [its] sister circuits that evidence is intrinsic if it
‘complete[s] the story’ of the charged crime.” Id. (quoting Bowie, 232 F.3d at 928) (second
alteration in original). In any event, the extrinsic/intrinsic distinction is of limited importance:
evidence of extrinsic acts is still admissible, but is subject to the requirements of Rule 404(b) and

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the defense is entitled to a limiting instruction upon request—two requirements that do not apply
to evidence of intrinsic acts. See, e.g., Bowie, 232 F.3d at 927.
Among other offenses, Abu Khatallah has been charged with Conspiracy to Provide
Material Support and Resources to Terrorists Resulting in Death (Count 1). The Superseding
Indictment states that the objects of the conspiracy include the attack on the Mission and Annex.
As such, the actions the defendant took in preparation for the attack—such as gathering weapons,
supplies, and information—were all taken in furtherance of the objects of the charged conspiracy
and serve to help prove the conspiracy charge. These acts are therefore intrinsic to the charged
crime of conspiracy. See, e.g., McGill, 815 F.3d at 881–82 (recognizing that other acts taken in
furtherance of the goals of a charged conspiracy are intrinsic).
The Government contends these acts are also intrinsic to the other charges in the
indictment. However, it is not necessary for the Court to resolve this question. Even if the other
acts are extrinsic to the remaining charges, evidence of them is still admissible under Rule
404(b). The evidence of the other acts the Government seeks to introduce speaks to the steps the
defendant took to prepare for the attack and the charged conduct associated with it, and thus is
relevant to prove preparation, a permissible purpose under Rule 404(b).
Nor does Rule 403 bar the admission of this evidence. Preparatory actions are highly
probative of the defendant’s intent and participation in the attack. This probative value is not
substantially outweighed by any risk of prejudice because these acts of preparation are not
particularly inflammatory or likely to lead the jury to conduct prohibited propensity reasoning.
As such, the preparatory acts are admissible as to all counts, though the defense is entitled to a
limiting instruction for the non-conspiracy counts should it desire one. See Fed. R. Evid. 105.

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2.

Evidence of the defendant’s anti-American animus.

The Government next seeks to admit evidence of other acts related to the defendant’s
anti-American bias, which it contends is relevant to prove his motive for attacking the Mission
and Annex. The defendant responds that because many of these statements were made after the
attack, they cannot show motive and, in any event, should be barred by Rule 403.
Motive is a permissible use of other acts evidence under Rule 404(b). Fed. R. Evid.
404(b) (other acts evidence “may be admissible for another purpose, such as proving motive”);
see also United States v. Straker, 800 F.3d 570, 590 (D.C. Cir. 2015) (per curiam) (“Intent,
knowledge, and motive are ‘well-established non-propensity purposes for admitting evidence of
prior crimes or acts.’” (quoting Bowie, 232 F.3d at 930)). Evidence that the defendant harbored
anti-American animus or believed that the Mission and Annex were a spy mission provide proof
of a reason for the defendant to participate in the attack. As such, Rule 404(b) provides no
barrier to the admission of this evidence.
Of course, this evidence must still clear the requirements of Rule 403 as well. With
respect to the majority of the evidence, the requirements of Rule 403 are no barrier to admission.
The defendant’s statements that the United States is an enemy, that America is the root of the
world’s evil, and that the Mission was a spy base are highly probative in that they provide a
motivation for defendant to have committed the attacks. Nor is this probative value substantially
outweighed by any unfair prejudice; these alleged statements are no more inflammatory than the
criminal conduct that the defendant is already charged with. Cf. United States v. Mahdi, 598
F.3d 883, 892 (D.C. Cir. 2010) (affirming admission of defendant’s prior uncharged assaults that
“paled alongside the extreme violence of the acts of which [the defendant] was indicted and
convicted”).

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However, some of the statements the Government seeks to introduce—in particular the
evidence that the defendant sought to threaten or kill the next American ambassador in retaliation
for Abu Anas al-Libi’s capture and that, over a year after the attacks, the defendant ordered his
associates to kill all Americans in Benghazi—do not pass muster under Rule 403. For one, the
probative value of this evidence is lessened in that it relates to post-attack statements: statements
made so far in time after the attack give rise to a weaker inference as to motive at the time of the
attack. See United States v. Watson, 894 F.2d 1345, 1349 (D.C. Cir. 1990) (“The temporal (as
well as the logical) relationship between a defendant’s later act and his earlier state of mind
attenuates the relevance of such proof. . . .”). Additionally, given that the Government has
evidence of other statements that can show the defendant’s alleged anti-American bias, evidence
of these latter statements is cumulative and not essential to make the Government’s point.
Finally, evidence that the defendant urged his men to kill all Americans in Benghazi or to kill the
next American ambassador to Libya are of heightened prejudicial risk because their similarity to
the charged crimes could lead the jury to engage in impermissible propensity reasoning. See
United States v. Manner, 887 F.2d 317, 323 (D.C. Cir. 1989) (noting the D.C. Circuit’s “concern
that the similarity of other act evidence to the charged offense ‘increases the danger that the jury
will confuse the issues necessary to convict the defendant’” (citation omitted)).
As such, the Court will prohibit, under Rule 403, the admission of evidence that the
defendant sought to threaten or kill the next American ambassador in retaliation for al-Libi’s
capture or that well after the September 2012 attacks he ordered his associates to kill all
Americans located in Benghazi. Cf. Straker, 800 F.3d at 591–92 (affirming admission of prior
bad acts and approving of the district court’s decision to exclude most inflammatory other acts

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evidence as cumulative and posing the greatest risk of prejudice). The Court will grant the
Government’s motion with respect to the other specified evidence of anti-American animus.
3.

Evidence of the defendant’s relationships and history with his alleged coconspirators.

Next, the Government seeks to introduce evidence regarding the defendant’s relationship
with his alleged co-conspirators, arguing that this evidence is admissible to elucidate the
formation, evolution, and organization of the charged conspiracy. The defendant, in turn,
contends that the evidence would be used impermissibly under Rule 404(b) and that it is not
relevant to the conspiracy’s formation because some of the acts took place after the attack.
The D.C. Circuit grants prosecutors “considerable leeway in offering evidence of other
offenses ‘to inform the jury of the background of the conspiracy charged . . . and to help explain
to the jury how the illegal relationship between the participants developed.’” McGill, 815 F.3d
at 879 (alteration in original) (quoting United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir.
2000)). Thus, it has permitted the admission of evidence in conspiracy cases that serves “to link
a defendant to other defendants,” “to show the nature of a conspiracy and ‘the kind of
organizational control’ a defendant exercised,” and “to show the defendants’ intent to act in
concert.” Id. (citations omitted); see also Straker, 800 F.3d at 590 (“Evidence that defendants
jointly engaged in other criminal activity can be relevant to shed light on how the ‘relationship of
mutual trust’ developed between those individuals.”). The evidence that the Government seeks
to admit serves to help illustrate the relationship between the defendant and his alleged coconspirators and to provide the jury with a basis for understanding how a relationship of mutual
trust developed. This is a permissible non-character use of evidence under D.C. Circuit
precedent, and Rule 404(b) is thus no barrier to the admission of this evidence to prove the
existence of a conspiracy.
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The defendant contends that even if Rule 404(b) is no barrier, the evidence should still be
excluded under Rule 403. As with the other acts relevant to anti-American bias, for most of
these other acts the probative value is not substantially outweighed by the risk of prejudice. The
evidence that the defendant’s alleged co-conspirators worked as hit men for the defendant, that
the defendant stockpiled weapons in the residence of his alleged co-conspirator, that the
defendant was a leader in both UBJ and AAS, two groups that were heavily involved in the
attack, and that the defendant was incarcerated at Abu Salim prison in Tripoli, Libya, where he
met and formed relations with his alleged co-conspirators, is highly probative in that it
illuminates for the jury how the relationships between the defendant and his alleged coconspirators developed such that they would have been willing to engage in criminal activity
together. Cf. Straker, 800 F.3d at 590 (affirming admission of prior criminal acts by coconspirator defendants that “helped to explain how [they] knew they could rely on one another
during” the charged crime). This evidence also poses limited risk of unfair prejudice,
particularly since the prior acts are not inflammatory compared to the crimes that the defendant
is charged with. Cf. Mahdi, 598 F.3d at 892.
However, as with the evidence of anti-American bias, some of the evidence that the
Government seeks to admit does pose a problem under Rule 403, particularly that the defendant
and his alleged co-conspirator plotted to kill the next American ambassador to Libya and that the
defendant commanded his alleged co-conspirators to kill an American teacher in Benghazi.
Again, since these acts appear to have occurred well after the attack and after the charged
conspiracy ended they do little to illuminate the formation and contours of the conspiracy.
Furthermore, as with the excluded acts relevant to anti-American animus, these two prior acts are
particularly likely to pose a risk of the jury engaging in prohibited propensity reasoning given

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their similarity to the acts charged here. See Manner, 887 F.2d at 323. As such, the Court will
prohibit the introduction of this evidence under Rule 403. Cf. Straker, 800 F.3d at 591–92. The
Court will grant the Government’s motion with respect to the other specified evidence of
defendant’s relationships with his co-conspirators.
4.

Evidence of the defendant’s facility with and access to mortars.

The Government further seeks to admit evidence of the defendant’s facility with and
access to mortars, arguing that it is relevant to prove he that had the opportunity to commit the
charged offenses. It further clarified in its supplemental filing of September 5, 2017 that this
information is relevant to establishing the defendant’s connection with the Annex portion of the
attack—which involved a precision mortar attack—and the foreseeability of the acts for purposes
of a conspiracy theory of liability. The defendant submits that the evidence is being used only
for prohibited purposes and should be excluded under Rule 403.
The attack on the Annex involved a precision mortar attack, and the Government
explained in its filing from September 5, 2017 that it intends to introduce expert testimony
regarding the nature of that attack. Additionally, the Government explained that it has evidence
showing that the defendant, along with an alleged co-conspirator, obtained a map from the
Mission with geographic coordinates that could be used to plan a precision mortar attack. The
defendant’s familiarity with and knowledge of mortars speaks to his opportunity and capacity to
be involved in planning or perpetrating a precision mortar attack (presumably using the
coordinates from the stolen map), a permissible use of evidence under Rule 404(b). See United
States v. Tavares, 427 F.3d 122, 125 (1st Cir. 2005) (affirming admission of phone call where
defendant attempted to arrange a weapons sale because it “tend[ed] to establish that [defendant]
knew how to conduct a weapons sale”). In addition, this evidence also tends to prove the

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defendant’s ability to foresee the Annex portion of the attack, which as the Government notes
would be relevant to a conspiracy theory of liability. As such, Rule 404(b) does not pose a
barrier to the admission of this evidence.
Rule 403 also does not pose a barrier. The defendant’s familiarity with mortars is
probative to his ability to be involved in the Annex phase of the attack. This information is not
unduly prejudicial since it is not particularly inflammatory, especially given the ongoing conflict
in Libya and the relatively inflammatory nature of the charged offenses. Thus, the probative
value is not substantially outweighed by the risk of prejudice and the evidence is admissible.
5.

Evidence that the defendant increased security and hid out following the
capture of Abu Anas al-Libi by American forces in 2013.

Finally, the Government seeks to admit evidence that, after American forces captured
suspected terrorist Abu Anas al-Libi in 2013, the defendant increased his personal security and
sought to hide out, contending that this evidence shows a consciousness of guilt. The defendant
argues, in turn, that there are many innocent explanations for the defendant’s decision to increase
security and thus the Government cannot use this evidence for consciousness of guilt.
Consciousness of guilt is a recognized permissible use for evidence under Rule 404(b).
See United States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995). One reasonable inference
that can be drawn from the defendant’s decision to increase security after the capture of al-Libi is
that the defendant feared American forces would seek to capture him as well. From there, it is
reasonable to conclude that the defendant committed an act that would cause the American
government to seek to capture him, such as the attack on the Mission and Annex, particularly
since the Government proffered at the September 5, 2017 status hearing that it had evidence
expressly linking the defendant’s fear of capture to the attack on the Mission and Annex. That
there may be innocent explanations as well does not negate the permissible use for this
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information, and the defense is free to elicit evidence of such an explanation for the defendant’s
actions. Nor does Rule 403 pose a hurdle to the admission of this evidence. The probative value
is certainly not insignificant. Given the charges in this case and the other evidence the
Government seeks to introduce, this evidence is of limited risk of prejudice. Thus, the risk of
prejudice does not substantially outweigh its likely probative value.
***
For the foregoing reasons, it is hereby
ORDERED that [216] the Government’s Motion in Limine to Admit Evidence of Other
Crimes is GRANTED IN PART and DENIED IN PART, as described above.
SO ORDERED.

CHRISTOPHER R. COOPER
United States District Judge
Date: September 7, 2017

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