United States v. Abdalla

U
     20-295
     United States v. Abdalla et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
     2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
     COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
     A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
     ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 17th day of March, two thousand twenty-one.
 4
 5         PRESENT: ROBERT D. SACK,
 6                    RICHARD C. WESLEY,
 7                    RICHARD J. SULLIVAN,
 8                         Circuit Judges.
 9   _____________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                              Appellee,
14                     v.                                                           No. 20-295
15
16   IBRAHIM AKASHA ABDALLA, AKA Ibrahim
17   Akasha,
18
19                      Defendant-Appellant. *
20   _____________________________________

     *   The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
 1
 2   FOR APPELLANT:                               STEPHANIE M. CARVLIN, Law Office of
 3                                                Stephanie M. Carvlin, New York, NY.
 4
 5   FOR APPELLEE:                                JASON A. RICHMAN, Assistant United
 6                                                States Attorney (Amanda L. Houle,
 7                                                Anna M. Skotko, Assistant United
 8                                                States Attorneys, on the brief), for
 9                                                Audrey Strauss, United States
10                                                Attorney for the Southern District of
11                                                New York.

12         Appeal from the United States District Court for the Southern District of

13   New York (Victor Marrero, Judge).

14         UPON      DUE     CONSIDERATION,           IT   IS   HEREBY       ORDERED,

15   ADJUDGED, AND DECREED that the judgment of the district court is

16   AFFIRMED.

17         Defendant-Appellant Ibrahim Akasha Abdalla appeals from a judgment of

18   conviction entered by the district court following his guilty plea to charges

19   including conspiracy to manufacture and import controlled substances into the

20   United States, in violation of 21 U.S.C. §§ 959(a), 959(d), 960(a)(3), 960(b)(1)(A),

21   960(b)(1)(H), and 963; distribution of controlled substances, in violation of 18

22   U.S.C. §§ 2, 959(a), 960(b)(1)(A), and 960(b)(1)(H); the use and carrying of

23   destructive devices in furtherance of drug trafficking crimes, in violation of 18

24   U.S.C. § 924(o); and corruption and bribery of public officials to avoid prosecution,
 1   in violation of 18 U.S.C. §§ 1512(c)(2), 1512(h), and 1512(i).

 2         On appeal, Abdalla argues that because he is not a citizen of the United

 3   States and all his criminal actions occurred entirely outside of the United States,

 4   his conduct lacked a sufficient jurisdictional nexus to the United States and he was

 5   denied fair notice that he could be prosecuted in the United States. He therefore

 6   contends that his prosecution violated his due process rights.

 7         When considering Abdalla’s challenge based on constitutional due process

 8   rights, “we review the district court’s factual determinations for clear error, while

 9   the constitutional significance of those findings, including the ultimate

10   determination of whether due process has been violated, is reviewed de novo.”

11   United States v. Epskamp, 

832 F.3d 154

, 160 (2d Cir. 2016) (internal quotation marks

12   and alterations omitted).     We conclude that both of Abdalla’s due process

13   arguments are foreclosed by our decision in United States v. Al Kassar, 

660 F.3d 108

14   (2d Cir. 2011).

15         With respect to Abdalla’s first argument regarding a lack of “nexus,” we

16   determined in Al Kassar that where a non-citizen defendant acts entirely outside

17   of the United States, there is a still a “sufficient nexus between the defendant and

18   the United States [to satisfy due process] . . . when the aim of that activity is to



                                               3
 1   cause harm inside the United States.”

Id. at 118.

Abdalla conceded in his guilty

 2   plea that he specifically intended that the heroin and methamphetamine

 3   manufactured and distributed by his organization would be imported into the

 4   United States; his conduct is therefore more than sufficient to establish the

 5   necessary jurisdictional nexus. See United States v. Alarcon Sanchez, 

972 F.3d 156

,

 6   169 (2d Cir. 2020) (concluding that due process was not offended “in light of the

 7   conspiracy’s nexus to United States interests in eliminating drug trafficking on the

 8   high seas, and the fair warning we ascribe to those that participate in such

 9   conspiracies”).

10         Al Kassar also rebuts Abdalla’s argument regarding fair notice. As we

11   explained there, “[f]air warning does not require that the defendants understand

12   that they could be subject to criminal prosecution in the United States so long as

13   they would reasonably understand that their conduct was criminal and would

14   subject them to prosecution somewhere.”       Al 

Kassar, 660 F.3d at 119

(second

15   emphasis added). Abdalla nevertheless urges us to overrule the notice standard

16   for extraterritorial application of criminal statutes announced in Al Kassar, arguing

17   that the Due Process Clause should require that a defendant have notice of where

18   he risks being prosecuted. But this argument is a non-starter. Put simply, we



                                              4
 1   remain bound by Al Kassar, which has not been “called into question by an

 2   intervening Supreme Court decision or by one of this Court sitting in banc.” United

 3   States v. Santiago, 

268 F.3d 151

, 154 (2d Cir. 2001).     Accordingly, Abdalla’s

 4   argument fails.

 5         We have considered Abdalla’s remaining arguments and conclude that they

 6   are meritless. For the foregoing reasons, the judgment of the district court is

 7   AFFIRMED.

 8                                         FOR THE COURT:
 9                                         Catherine O'Hagan Wolfe, Clerk of Court
10
11
12
13




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