Wake Forest Law Review

Jolly roger

By George Kennedy

On August 13, in the criminal case of United States v. Said, the Fourth Circuit affirmed the convictions but vacated the sentences of six individuals involved in acts of piracy in the Gulf of Aden. Defendants in this case are Somali pirates apprehended by the U.S. Navy after a foiled plot to seize a merchant ship.

Attempts to Seize Merchant Ships

In an area notorious for piracy and hostage-taking on the high seas, Defendants attempted, on at least two separate occasions, to board merchant ships, take the crew members hostage, and obtain ransom money. Defendants’ first attempt came in 2010. At that time, Defendants secured a small motor boat, loaded it with weapons, and travelled into the Gulf of Aden searching for a merchant ship to seize. Soon after, however, Defendants’ boat was noticed by the HMS Chatham of the British Royal Navy. Sailors from the Chatham intercepted Defendants, confiscated their weapons, and ordered them to return home.

Undaunted by their initial failure, Defendants again set out in the same motor boat in order to seize a merchant ship in April 2010. Before sunrise, Defendants attempted to storm what they believed was a merchant ship crewed by civilians. Defendants fired rounds from AK-47s in order to scare the crew. Unbeknownst to Defendants, however, the ship they were trying to seize was in fact the USS Ashland, a dock landing ship of the United States Navy. Personnel aboard the USS Ashland promptly returned fire on Defendants, killing one member of their crew and destroying their boat. All Defendants were apprehended and taken prisoner by the U.S. Navy. The U.S. Navy transported Defendants to a naval brig in Norfolk, Virginia where they awaited trial.

Trial and Eighth Amendment Challenge

While Defendants were initially indicted by a grand jury in April 2010, Defendants awaited trial on the substantive charges leveled against them until February 2013. Defendants were charged with piracy, conspiracy to commit hostage taking, and several other related charges stemming from Defendants’ actions in attempting to seize the USS Ashland and from Defendants’ attempt to commit piracy when intercepted by the HMS Chatham. Following a six-day trial, the jury convicted Defendants on all counts.

Following their convictions, Defendants filled motions for judgment of acquittal, as well motions to invalidate the mandatory life sentence imposed by 18 U.S.C. § 1651, the anti-piracy statute. While the district court denied the motion for judgment of acquittal, the district court did hold that the mandatory life sentence as imposed by § 1651 violated Defendants’ Eighth Amendment Rights. Accordingly, the district court upheld the convictions of Defendants, and imposed sentences ranging from 360 months to 510 months imprisonment.

Issues on Appeal

On appeal, Defendants contended that the district court made three errors: (1) denying their motions to dismiss the piracy charge, (2) improperly instructing the jury on the elements of piracy under § 1651, and (3) denying their motions for judgment of acquittal. The Fourth Circuit dismissed all Defendants’ claims.

First, the Fourth Circuit held that, contrary to Defendants’ arguments, the Fourth Circuit faithfully applied the principles of United States. v. Dire, the foundational case on interpreting § 1651. Because the district court made no error in interpreting § 1651, the Fourth Circuit held that the district court made no error in denying the motions to dismiss the piracy charge nor did the district court err in instructing the jury on the elements of piracy under § 1651. As to the denial of Defendants’ motions for judgment of acquittal, the Fourth Circuit also held that district court did not err. The Fourth Circuit found that there was more than sufficient evidence in the record to support each charge for which Defendants were convicted. Therefore, the district court made no error in refusing to acquit Defendants.

The government also raised an issue on appeal. The government contended that the district court erroneously determined that 18 U.S.C. § 1651’s mandatory life sentence, as applied to the defendants, violates the Eight Amendment’s prohibition against cruel and unusual punishment. To this point, the Fourth Circuit agreed, and vacated the sentences imposed by the district court, and remanded for resentencing. In so holding, the Fourth circuit argued that the seriousness of the crime of piracy made imposition of a life sentence not “grossly disproportionate” to the crime committed. Furthermore, the Fourth Circuit argued that cases that did reduce the severity of punishments based on the Eighth Amendment almost always involved capital punishment, and that cases which did not reduce the severity of punishment involved crimes far less serious than piracy. Therefore, the Fourth Circuit urged deference to the text of § 1651 which mandates life imprisonment for piracy.

Reversed, Vacated, and Remanded

Accordingly, the Fourth Circuit reversed the judgment of the district court in regards to sentencing, vacated the sentences imposed, and remanded the case for resentencing.

 

By David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.