Abouammo v. United States

Overview

A case in which the Court will decide whether venue is proper in a district where no offense conduct took place, so long as the statute's intent element "contemplates" effects that could occur there.

Facts

The U.S. government alleges that while an employee at Twitter, Ahmad Abouammo was recruited by an associate of the Saudi crown prince to surveil accounts critical of the Saudi royal family. As part of their investigation into his Saudi ties, FBI agents from the San Francisco office came to his house in Seattle, Washington to interview him. While they were there, Abouammo ran upstairs and quickly fabricated invoices to cover payments he had received. Then he emailed them back down to the agents sitting in his living room (in Seattle). But the agents also received those documents back at their email inboxes in San Francisco. And Mr. Abouammo was criminally indicted for falsifying records in the state of California.

Issue

Does 18 U.S.C. § 951 (acting as an agent of a foreign government) apply to a private employee who acts at the direction of a foreign government official without registering as a foreign agent? Were the charges and conviction constitutionally sufficient given the First Amendment concerns raised by prosecution of conduct involving gathering information?

Rule

18 U.S.C. § 951 prohibits acting in the United States as an agent of a foreign government without prior notification to the Attorney General; this requires knowing direction or control by a foreign government and willful failure to notify. FARA and § 951 are distinct statutes with different elements; § 951 covers a broader range of activities directed by foreign governments and does not require a formal registration obligation.

Analysis

The right to be tried where the crime was committed is one of the oldest protections in American law - and it exists because the British Crown tried to strip it away.

After the Boston Massacre in 1770, Parliament passed a series of laws allowing British soldiers and officials accused of crimes in the colonies to be shipped back to England for trial. The message was clear: if you can move the trial far enough from the community that witnessed the crime, you can control the outcome. Colonial juries who saw what happened would never get to judge it.

The Founders remembered. When they wrote Article III, they required that "the Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed." When that wasn't specific enough, they added the Sixth Amendment's Vicinage Clause: trial "by an impartial jury of the State and district wherein the crime shall have been committed."

The question in Abouammo is whether the government did exactly what the British tried to do - moved the trial to a district hundreds of miles from where the defendant actually acted, because the forum was more favorable to the prosecution. Abouammo created and sent the documents in Seattle. He was charged in San Francisco. The government's theory: because the statute's intent element "contemplates" effects in California, venue is proper there. The defense says that reasoning would let the government charge anyone, anywhere an email lands.

Conclusion

When Congress does not define venue in a criminal statute, the proper venue is the district where the defendant committed the conduct elements of the offense. A defendant's mental state - even when it is a statutory element - cannot be used to establish venue in a different district. The crime happens where the defendant's hands were, not where the defendant's mind was pointed.