Fourth Circuit affirms convictions of Somali pirate negotiator

The Fourth Circuit today unanimously affirmed the piracy and piracy-related convictions of Mohammad Shibin, a negotiator for Somali pirates in connection with the seizure of the American sailing ship Quest and the German merchant ship Marida Marguerite. Judge Niemeyer wrote the opinion in United States v. Shibin, in which Judge Motz and Judge Floyd joined. (For news coverage of the oral argument, see here.)

This summary begins the opinion:

On May 8, 2010, Somali pirates seized the German merchant ship the Marida Marguerite on the high seas, took hostages, pillaged the ship, looted and tortured its crew, and extorted a $5-million ransom from its owners. Mohammad Saaili Shibin, while not among the pirates who attacked the ship, boarded it after it was taken into Somali waters and conducted the negotiations for the ransom and participated in the torture of the merchant ship’s crew as part of the process.

On February 18, 2011, Somali pirates seized the American sailing ship the Quest on the high seas. A U.S. Navy ship communicated with the pirates on board in an effort to negotiate the rescue of the ship and its crew of four Americans, but the pirates referred the Navy personnel to Shibin as their negotiator. When the Navy ship thereafter sought to bar the pirates from taking the Quest into Somali waters, the pirates killed the four Americans.

Shibin was later located and arrested in Somalia and turned over to the FBI, which flew him to Virginia to stand trial for his participation in the two piracies. A jury convicted him on 15 counts, and he was sentenced to multiple terms of life imprisonment.

On appeal, Shibin contends that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction over those charges; (2) to dismiss all counts for lack of personal jurisdiction because Shibin was forcibly seized in Somalia and involuntarily removed to the United States; (3) to dismiss the non-piracy counts involving the Marida Marguerite because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made to him by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

We conclude that the district court did not err in refusing to dismiss the various counts of the indictment and did not abuse its discretion in admitting Agent Coughlin’s testimony. Accordingly, we affirm.

In the course of explaining why jurisdiction was proper over the non-piracy counts regardless of the presence or absence of universal jurisdiction, the Court explains that “Shibin was involved in hostage taking on the Marida Marguerite and was later found in Virginia, where he was prosecuted.” This is something of an understatement in normal parlance, but makes sense in legal parlance. As the court explains earlier in its opinion, Shibin’s presence in the United States satisfies the “found in” requirement even though that presence was involuntary on his part.

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Somali pirates lose on appeal: Fourth Circuit affirms piracy convictions in U.S.S. Nicholas prosecution and reverses dismissal of piracy count in U.S.S. Ashland prosecution

The Fourth Circuit today issued published opinions in piracy prosecutions arising out of foiled attacks on the U.S.S. Ashland and the U.S.S. Nicholas. In both, the federal government won and the pirates lost.

The principal opinion, United States v. Dire, affirms the convictions and life-plus sentences of the Somali defendants against several challenges, including the claim “that their fleeting and fruitless strike on the Nicholas did not, as a matter of law, amount to a § 1651 piracy offense.” Judge King wrote the opinion for the Court, in which Judge Davis and Judge Keenan joined.

The other opinion, United States v. Said, vacates the dismissal of the § 1651 piracy count in the prosecution arising out of the attack on the U.S.S. Ashland. Judge King wrote the opinion for the Court, in which Judge Davis and Judge Keenan joined.

The Dire decision is a ringing endorsement of the thorough analysis provided by Judge Mark Davis (EDVA) earlier in the case. See United States v. Hasan, 747 F. Supp. 2d 599 (EDVA 2010). The Fourth Circuit’s opinion states: “Simply put, we agree with the conception of the law outlined by the court below. Indeed, we have carefully considered the defendants’ appellate contentions–endorsed by the amicus curiae brief submitted on their behalf [filed by counsel for the Said defendants]–yet remain convinced of the correctness of the trial court’s analysis.”

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Where are the Fourth Circuit’s piracy decisions?

As the United States and a new Somali defendant gear up for trial this week in front of Judge Doumar, one question is on the mind of all concerned: Where are the Fourth Circuit’s piracy decisions?

The Fourth Circuit has been considering the definition of piracy for over a year now. Last spring, a three-judge panel consisting of Judge King, Judge Davis, and Judge Keenan heard oral arguments in an appeal arising out of an attack on the U.S.S. Ashland. Last September, the same panel heard oral arguments in an appeal arising out of an attack on the U.S.S. Nicholas. At the time of the Nicholas arguments, it appeared that the panel had put the case on some sort of fast track after the Ashland appeal was caught up in some procedural confusion. But the Nicholas appeal has not been quickly resolved even though, as I have previously argued, the procedural issue that seemed to dog the Ashland appeal has been resolved  by a different panel in a different case.

Regardless of the outcome of the Ashland appeal, it is curious that the decision in the Nicholas appeal has not yet been issued. Various judges on the panel did show interest at oral argument in issues beyond the definition of piracy, such as the extraterritorial application of Miranda and the unit of prosecution under 924(c). But the panel did not press the government very hard on the definition-of-piracy issues, as one would expect if the judges’ pre-argument review of the case pointed toward a ruling against the government.

There can be many reasons for the passage of so much time without a decision. And in big cases, the decisions can take a long time. Perhaps the panel is deeply fractured on one or more of the issues. Perhaps the judges have been busy working on other cases (as seems to be at least part of the explanation given lengthy or controversial opinions that have been released in recent months by the panel members in other cases). Or perhaps the opinion or opinions at issue raise knotty questions about other aspects of the Fourth Circuit’s case law that need to be smoothed out. At this point, it is all speculative from the outside.

That speculation could start building if more stories like yesterday’s AP story about the upcoming piracy trial begin to appear. As the story explains, “[t]he trial of a Somali man U.S. authorities consider the highest-ranking pirate they have ever captured will begin this week in Virginia under a cloud of uncertainty about what the definition of piracy is.” Part of the uncertainty is whether the crime of piracy requires that the pirate actually took possession of the target ship, committing robbery at sea. Two district courts have gone different ways on that question. These are the two cases currently on appeal to the Fourth Circuit.

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Explicit resolution of implicit intra-circuit split on appealability of pre-trial indictment count dismissals in the Fourth Circuit

A footnote in an opinion issued earlier this week appears to resolve an implicit intra-circuit split over the government’s ability to appeal a pre-trial order dismissing a particular count or counts in an indictment when the dismissal is based on a stipulation that the government will be unable to prove (or will not seek to prove) certain facts.

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Report from today’s oral argument in the U.S.S. Nicholas piracy case

The United States Court of Appeals for the Fourth Circuit heard arguments this morning in the second of two pirate prosecutions in federal court in Norfolk, Virginia. The first appeal, which the court heard in the spring, has been held up on a procedural issue and is being stayed pending the decision of today’s consolidated appeals. This second appeal–United States v. Abdi Dire (the lead case, together for argument with four other appeals)–was the second argued this morning in the Red Courtroom on the fourth floor of the Lewis F. Powell, Jr. Courthouse in Richmond. These appeals arise out of the convictions, after trial, of five Somali pirates for their attack on the U.S.S. Nicholas (preview post here). (UPDATE: For an AP write-up of the argument, see here.)

The panel that heard arguments was the same panel that heard arguments in the appeal arising out of the U.S.S. Ashland prosecution: Judge King, Judge Davis, and Judge Keenan.

Appellants divided their argument among three lawyers, each of whom addressed a distinct issue: whether the facts proven amounted to piracy under the law of nations; whether certain statements made by the captured pirates should be suppressed; and whether three 924(c) counts should be merged for sentencing.

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The pirates are back in the Fourth Circuit

If all goes as planned, I will be in the Red Courtroom tomorrow morning in the Lewis F. Powell, Jr. Courthouse to see oral arguments in United States v. Abdi Dire. The appeal will focus on various issues arising out of the prosecution of Somali pirates for their attack on the U.S.S. Nicholas. (News accounts of the prosecution here and here.)

Last spring, I attended arguments in the appeal arising out of the prosecution for a pirate attack on the U.S.S. Ashland. The panel ran into some procedural issues that prevented it from reaching the central question about the scope of the piracy prohibition. I believe the Fourth Circuit is still holding that appeal, presumably pending the disposition of the appeal being argued tomorrow.

(For an earlier discussion of the two cases, see this post by David Glazier at Opinio Juris.)

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