United States v. Said

• Decision Date: 13 August 2015
• Docket Number: 14–4421,Nos. 14–4413,14–4420,14–4424,14–4429.,14–4423,s. 14–4413
• Citation: 798 F.3d 182
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Mohamed Ali SAID, a/k/a Mohammed Said, a/k/a Maxamad Cali Saciid; Mohamed Abdi Jama, a/k/a Mohammed Abdi Jamah; Abdicasiis Cabaase; Abdi Razaq Abshir Osman, a/k/a Abdirasaq Abshir; Mohamed Farah, a/k/a Mahamed Farraah Hassan, Defendants–Appellees. United States of America, Plaintiff–Appellee, v. Mohamed Abdi Jama, a/k/a Mohammed Abdi Jamah, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Mohamed Farah, a/k/a Mahamed Farraah Hassan, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Abdi Razaq Abshir Osman, a/k/a Abdirasaq Abshir, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Mohamed Ali Said, a/k/a Mohammed Said, a/k/a Maxamad Cali Saciid, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Abdicasiis Cabaase, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

798 F.3d 182

UNITED STATES of America, Plaintiff–Appellant
v.
Mohamed Ali SAID, a/k/a Mohammed Said, a/k/a Maxamad Cali Saciid;

Mohamed Abdi Jama, a/k/a Mohammed Abdi Jamah;

Abdicasiis Cabaase;

Abdi Razaq Abshir Osman, a/k/a Abdirasaq Abshir;

Mohamed Farah, a/k/a Mahamed Farraah Hassan, Defendants–Appellees.

United States of America, Plaintiff–Appellee
v.
Mohamed Abdi Jama, a/k/a Mohammed Abdi Jamah, Defendant–Appellant.

United States of America, Plaintiff–Appellee
v.
Mohamed Farah, a/k/a Mahamed Farraah Hassan, Defendant–Appellant.

United States of America, Plaintiff–Appellee
v.
Abdi Razaq Abshir Osman, a/k/a Abdirasaq Abshir, Defendant–Appellant.

United States of America, Plaintiff–Appellee
v.
Mohamed Ali Said, a/k/a Mohammed Said, a/k/a Maxamad Cali Saciid, Defendant–Appellant.

United States of America, Plaintiff–Appellee
v.
Abdicasiis Cabaase, Defendant–Appellant.

Nos. 14–4413
14–4420
14–4421
14–4423
14–4424
14–4429.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2015.
Decided: Aug. 13, 2015.

798 F.3d 185

ARGUED:Benjamin L. Hatch, Office of the United States Attorney, Norfolk, Virginia, for Appellant/Cross–Appellee. Geremy C. Kamens, Office of the Federal Public Defender, Alexandria, Virginia, for Appellees/Cross–Appellants. ON BRIEF:Dana J. Boente, United States Attorney, Alexandria, Virginia, Joseph E. DePadilla, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia; Jerome J. Teresinski, Trial Attorney, National Security Division, United States Department of Justice, Washington, D.C., for Appellant/Cross–Appellee. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Keith Loren Kimball, Office of the Federal Public Defender, Alexandria, Virginia, for Appellee/Cross–Appellant Mohamed Ali Said; Robert B. Rigney, Protogyrou & Rigney, PLC, Norfolk, Virginia, for Appellee/Cross–Appellant Mohamed Abdi Jama; David M. Good, David Michael Good, PC, Virginia Beach, Virginia, for Appellee/Cross–Appellant Mohamed Farah; Trey R. Kelleter, Vandeventer Black LLP, norfolk, Virginia, for Appellee/Cross–Appellant Abdi Razaq Abshir Osman; Bruce C. Sams, Sams & Gilchrist PLLC, Norfolk, Virginia, for Appellee/Cross–Appellant Abdicasiis Cabaase.

Before KING and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.

Opinion

No. 14–4413 reversed in part, vacated in part, and remanded; Nos. 14–4420, 14–4421, 14–4423, 14–4424, and 14–4429 affirmed by published opinion. Judge KING wrote the opinion, in which Judge KEENAN and Senior Judge DAVIS joined. Senior Judge DAVIS wrote a separate concurring opinion.

KING, Circuit Judge:

In early 2010, a group of seven Somalis—including defendants Mohamed Ali Said, Mohamed Abdi Jama, and Abdicasiis Cabaase—boarded a small skiff and entered the Gulf of Aden (in the Indian Ocean between the Arabian Peninsula and the Horn of Africa), intending to seize a merchant ship at sea. Their objective was foiled by the British warship HMS Chatham, which was conducting a counter-piracy mission in the Gulf. Undeterred by their initial lack of success, Said, Jama, and Cabaase joined with defendants Abdi Razaq Abshir Osman and Mohamed Farah, plus two others, and returned from Somalia to the Gulf in the skiff in April 2010. During their April escapade, the defendants and their accomplices launched an attack on the USS Ashland, a United States Navy warship that they confused for a merchant vessel. The Ashland responded by destroying the skiff and killing one of the attackers.

After the defendants were apprehended and transported to the Eastern District of Virginia, they were tried and convicted of multiple offenses, including piracy as proscribed by 18 U.S.C. § 1651. At sentencing, the district court declined to impose statutorily mandated life sentences on the defendants, reasoning that such sentences

798 F.3d 186

would contravene the Eighth Amendment's prohibition against cruel and unusual punishment. See United States v. Said, 3 F.Supp.3d 515 (E.D.Va.2014), ECF No. 260 (the “Eighth Amendment Order ”).¹

The government, in pursuing its appeal in No. 14–4413, seeks relief from the district court's decision not to impose the life sentences required by § 1651. By their cross-appeals in Nos. 14–4420, 14–4421, 14–4423, 14–4424, and 14–4429, the defendants challenge the court's failure to dismiss the § 1651 charge, the jury instructions with respect to the piracy offense, and the sufficiency of the evidence supporting certain of their convictions. As explained below, we reject each of the defendants' contentions and affirm their convictions. We deem the government's appeal to be meritorious, however, and reverse the Eighth Amendment Order, vacate the defendants' sentences, and remand for resentencing.

I.

A.

1.

In approximately February 2010, defendants Said, Jama, and Cabaase—along with Jama Idle Ibrahim and three others—acquired a small wooden skiff on the coast of Somalia and loaded it with a hooked ladder and weapons, including AK–47 assault rifles, a rocket-propelled grenade launcher (an “RPG”), a Singapore Assault Rifle 80 (an “SAR–80”), and a Tokarev 9–mm pistol.² They also equipped the skiff with two motors, enabling it to more swiftly traverse the sea. The group then left Somalia and travelled into the Gulf of Aden searching for a merchant ship to seize. The Gulf is one of the most heavily trafficked shipping corridors in the world, making it a prime location for piracy.

On the afternoon of February 27, 2010, the skiff was intercepted in the Gulf of Aden by the HMS Chatham of the British Royal Navy. Upon encountering the skiff, the Chatham actioned a helicopter for a close investigation. The Somalis, recognizing the Chatham as a warship, attempted to flee in the skiff and threw weapons and their ladder overboard. Those actions were witnessed by the helicopter pilots, who conveyed information to a boarding team that had been dispatched in smaller boats from the warship.

The HMS Chatham's boarding team seized and searched the skiff, where team members discovered the pistol and ammunition for that weapon and the AK–47s. The boarding team also apprehended and questioned the Somalis. Ibrahim, speaking as the group's leader, asserted that the Somalis were smugglers who had taken human cargo to Yemen and that one of their boats had broken down along the way.³ Personnel of the Chatham photographed the Somalis, confiscated the pistol and ammunition, disabled one of the skiff's

798 F.3d 187

motors, spray-painted a red identification number on the skiff, and ordered the Somalis to return home.

2.

In April 2010, the five defendants in this case, along with Ibrahim and another man called the “Engineer,” used the same skiff to enter the Gulf of Aden from Somalia. So that the skiff “would not be recognizable,” the Somalis had obliterated the identification number spray-painted on it by Royal Navy personnel. See J.A. 415. To accomplish their goal of seizing a ship, the Somalis had obtained a replacement for the disabled motor and loaded the skiff with a hooked ladder, three AK–47s, and an RPG. Ibrahim and Jama led the new mission, and Said was next in command. Farah drove the skiff, and Cabaase and Osman supplied two of the weapons.

In the pre-dawn hours of April 10, 2010, the skiff swiftly approached a large ship believed by the Somalis to be a “cargo ship.” See J.A. 444. Nearing the ship's aft on its port side, Said and Cabaase held loaded AK–47s, while Jama attempted to load the RPG with explosive rockets.⁴ When the skiff was approximately twenty-five yards from the “cargo ship,” Cabaase began shooting at it with his AK–47. The Somalis intended to “scare [the crew], and then after that[,] capture the ship.” Id. The encounter took place about forty nautical miles off the coast of Yemen in international waters.

The targeted ship was actually the USS Ashland, a dock landing ship of the United States Navy, which was then transiting the Gulf of Aden transporting Marines and military equipment.⁵ Several personnel aboard the Ashland—namely, Marine Lance Corporal John Curtis, Damage Control Fireman James Hendershot, Seaman Donald Lane, Lieutenant Junior Grade Benjamin Towers, Lieutenant Brent Holloway, and Gunner's Mate Justin Myers—witnessed the Somalis' attack from several vantage points, including near the warship's aft, its mid-ship, and the bridge. Several of the witnesses saw Cabaase fire multiple rounds at the Ashland and heard bullets striking the ship. See, e.g., J.A. 153 (Curtis: “He was deliberately shooting ... the weapon towards the front right over the bridge of the USS ASHLAND.”); id. at 186 (Hendershot: “I saw a man stand up and bring a weapon up to his shoulder aiming at the ship....”); id. at 282 (Myers: “You saw a muzzle flash followed by the sound of a weapon, and I also heard a couple of clangs that sounded like ricochet on the side of the boat.”). Indeed, Corporal Curtis witnessed Cabaase “load a magazine, rack it, fire like two to three times, bang, bang, bang. Bang, bang. He dropped the magazine, loads another one, racks it a couple of times, keeps shooting, bang, bang, bang.” Id. at 153–54. The multiple shots fired at the Ashland were so startling that the warship's helmsman had difficulty with the steering.

Gunner's Mate Myers...