AEDPA Prosecution Constitutional Because Non-U.S. Conduct Targeted at U.S.

The World in U.S. Courts: Spring 2015 - Torture Victims Protection Act (TVPA)/Anti-Terrorism and Effective Death Penalty Act of 1996 (ADEPA)/Foreign Sovereign Immunity Act (FSIA) | March.24.2015

United States v. Ahmed, U.S. District Court for the Eastern District of New York, March 24, 2015

AEDPA, as amended, generally makes criminal the provision of material support to U.S. Government-designated terrorist organizations, and to receive military training from such groups. The statute expressly applies extraterritorially in certain circumstances alleged.

Ahmed first argued that the AEDPA could not be applied against him consistent with the Due Process Clause of the U.S. Constitution because he was not a U.S. citizen or national, and all of the conduct alleged in the indictment occurred outside the U.S. The District Court noted that criminal prosecutions for extraterritorial conduct satisfy the Due Process Clause where there is a "territorial nexus" between the U.S. and the alleged conduct so that the prosecution is not "arbitrary" or "fundamentally unfair." The Court then rejected Ahmed's argument, observing that the Government proffered that it would seek to prove that Ahmed sought to cause injury in the U.S. or to U.S. citizens, which was an adequate "nexus" with the U.S. for AEDPA prosecutions.

Ahmed also argued that 18 USC § 924(c), a statute providing for enhanced penalties in connection with certain crimes, including violations of AEDPA, could not itself be applied extraterritorially. Drawing on the Second Circuit's groundbreaking RICO decision in European Cmty. v. RJR Nabisco [Discussed in the Summer 2014 issue of The World in U.S. Courts], the District Court concluded that the geographic scope of § 924(c) should follow that of the underlying offenses to which it applies. Because the AEDPA applied to Ahmed's alleged conduct, so would the enhanced penalties of § 924(c).

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