U.S. v. Ali

• Decision Date: 24 June 2011
• Docket Number: Criminal No. 11–0106(PLF).
• Parties: UNITED STATES of America,v.Ali Muhamed ALI, Defendant.
• Court: U.S. District Court — District of Columbia

793 F.Supp.2d 386

UNITED STATES of America,

v.Ali Muhamed ALI, Defendant.

Criminal No. 11–0106(PLF).

United States District Court, District of Columbia.

June 24, 2011.

Brenda J. Johnson, U.S. Attorney's Office, Jennifer Ellen Levy, U.S. Department of Justice, Washington, DC, for Plaintiff.Timothy Ryan Clinton, Matthew J. Peed, Clinton & Peed, PLLC, Washington, DC, Brian C. Brook, Simon & Partners LLP, New York, NY, Shawn Franklin Moore, Federal Public Defender of D.C., Washington, DC, Robert P. Trout, Trout Cacheris, PLLC, Washington, DC, for Defendant.

OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on Defendant Ali Muhamed Ali's motion for bond review filed on June 7, 2011. The government filed an opposition to that motion, and the Court held a hearing on the motion on June 17, 2011. Upon consideration of the testimony presented by counsel for the defendant and the evidence, arguments and proffers presented by counsel for the defendant and counsel for the government, the Court will deny the motion.¹

I. BACKGROUND

A four-count superseding indictment was returned by a grand jury against defendant Ali Muhamed Ali on April 29, 2011. The first count charges him with conspiracy to commit piracy under the Law of Nations, in violation of 18 U.S.C. § 371; the second count with piracy under the Law of Nations and aiding and abetting and causing an act to be done, in violation of 18 U.S.C. §§ 2 and 1651; the third count with attack to plunder a vessel and aiding and abetting and causing an act to be done, in violation of 18 U.S.C. §§ 2 and 1659; and the fourth count with hostage taking and aiding and abetting and causing an act to be done, in violation of 18 U.S.C. §§ 2 and 1203.

The indictment alleges that Mr. Ali took part in the hijacking of the M/V CEC Future, a Bahamian-flagged vessel owned by the Danish company Clipper Group A/S. The CEC Future was captured in the Gulf of Aden outside of the territorial waters of any country on November 7, 2008, and the ship and its crew were held until January 16, 2009. Mr. Ali boarded the ship on November 9 or 10, 2008 and communicated with the owners of the CEC Future on numerous occasions to make ransom demands on behalf of the hijackers. Negotiations between Mr. Ali and Clipper Group A/S continued for several weeks until the company delivered 1.7 million U.S. dollars as ransom on January 14, 2009. The ship and crew were released two days later.

II. THE BAIL REFORM ACT

Our system of criminal justice embraces a strong presumption against detention. “ ‘In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ ” United States v. Gloster, 969 F.Supp. 92, 96–97 (D.D.C.1997) (quoting United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). The Bail Reform Act of 1984, 18 U.S.C. § 3142 et seq., sets forth the limited circumstances in which a defendant may be detained before trial despite the presumption in favor of liberty. See 18 U.S.C. § 3142(a). The Act allows the Court to order pretrial detention when it finds that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1); see United States v. Simpkins, 826 F.2d 94, 96 (D.C.Cir.1987). The Act requires the Court to consider four factors in determining whether a defendant is a risk of flight or danger to the community: the nature and circumstances of the offense charged, “including whether the offense is a crime of violence ... [or] a Federal crime of terrorism;” the weight of the evidence against the defendant; the history and characteristics of the defendant; and the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. § 3142(g). The government must demonstrate that the defendant is a flight risk under by a preponderance of the evidence, or that he poses a danger to the community by clear and convincing evidence. See United States v. Brown, 6 Fed.Appx. 5, 5–6 (D.C.Cir.2001); United States v. Vortis, 785 F.2d 327, 328–29 (D.C.Cir.1986), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986).

Subject to rebuttal by the defendant, the Bail Reform Act contains a presumption that a defendant cannot be released where the Court finds that there is probable cause to believe that he has committed an offense listed in 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed. See 18 U.S.C. § 3142(e)(3)(C). Hostage taking under 18 U.S.C. § 1203 is one such listed offense, see 18 U.S.C. § 2332b(g)(5)(B), and Section 1203(a) prescribes a maximum sentence of life imprisonment after conviction. See 18 U.S.C. § 1203(a). The indictment, “fair upon its face,” furnishes probable cause to believe that the defendant committed the charged act. United States v. Mosuro, 648 F.Supp. 316, 318 (D.D.C.1986) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n. 19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)); see also United States v. Smith, 79 F.3d 1208, 1210 (D.C.Cir.1996). Once a rebuttable presumption is created, it imposes a burden of production on the defendant to offer contrary credible evidence. See United States v. Alatishe, 768 F.2d 364, 371 (D.C.Cir.1985). Even if such contrary evidence or credible proffers are offered, the presumption remains as a factor to be considered by the Court amongst others in determining whether the defendant should be detained. United States v. O'Brien, 895 F.2d 810, 815 (1st Cir.1990); United States v. Narain, Civil Action No. 07–059, 2007 WL 1169335, at *1 (D.D.C. Apr. 19, 2007).²

III. THE PARTIES' ARGUMENTS

A. Nature and Circumstances of the Offense

Mr. Ali concedes that piracy and hostage taking are “stark and violent crimes,” but argues that he was not part of the contingent that attacked and hijacked the ship. He asserts that he had no prior knowledge of the plan, and points out that he performed a nonviolent and neutral role as negotiator. Def. Mot. at 10–11. At the hearing, Mr. Ali introduced multiple audio recordings between himself and the Clipper Group's negotiator in which he asserts that he consistently identified himself as independent from the pirates and voiced concern that they would harm him. The Court finds no such consistency in these audio tapes. See infra at 390. The government responds that negotiations for a ransom are necessary for piracy to succeed, that without them there would be no point in violently capturing a ship, and that the evidence shows that the defendant was actively involved in negotiations on behalf of the pirates, not as a neutral party. Opp. Mem. at 7–8.

Mr. Ali also contends that the seriousness of the charges actually weighs against his risk of flight. Because the United States has taken a strong public stance against piracy, he argues, even if Mr. Ali flees to Somalia he will be tracked down and returned to the United States. Def. Mot. at 12.

B. Weight of the Evidence

The government maintains that the evidence against Mr. Ali is quite substantial; it includes eyewitness testimony and documentary proof of Ali's role as negotiator for the pirates and Ali's own statements to the media and law enforcement admitting his role in the piracy. The government also points out that Mr. Ali was separately paid $75,000 by the Clipper Group. Opp. Mem. at 8. Mr. Ali contends that this $75,000 was voluntarily given to him by the company for diffusing the negotiations; he was paid nearly two weeks after hostages were released. Mr. Ali also provides a letter from the CEO of the Clipper Group, Per Gullestrup, thanking Mr. Ali for improving the conditions of the crew and stating that Mr. Ali “has at no point asked for any kind of compensation.” Def. Mot. at 13–14. In response to the letter, the government represents that it subsequently contacted Mr. Gullestrup, and he expressed approval of Mr. Ali's arrest. Mr. Ali's counsel states that he also spoke with Mr. Gullestrup, who qualified his statement to the government, saying that he was speaking generally about the prosecution of piracy by the United States.

C. History and Characteristics of the Defendant

Mr. Ali maintains that he has significant ties to the United States and is well regarded both in the United States and in Somaliland. He lived in the United States for 26 years and has numerous friends and family members in the Washington metropolitan area, two of whom testified as to his good reputation amongst the Somali–American community and one of whom offered to have Mr. Ali live with him if released on bond. Mr. Ali returned to Somalia in 2007 to care for his young son, for whom Mr. Ali is pursing asylum. Until shortly before his arrest, Mr. Ali was Somaliland's Director General of the Ministry of Education and participated in programs to expand Somaliland's primary school education programs. Def. Mot. at 3–4. Mr. Ali also points out that he has no prior criminal record and has a history of attending court proceedings. Id. at 6–7. Finally, he has submitted a number of letters of support from individuals in the Somali–American community attesting to Mr. Ali's good character and integrity.

The government argues that Mr. Ali has no property or funds in the United States; that he was fired from his position in Somaliland; and that he has engaged in fraudulent behavior as determined by the Immigration and Naturalization Service (“INS”). Mr. Ali submitted to INS that he was an agricultural worker in order to change his immigration status, but the affidavits in support of Mr. Ali's claim were found to be fraudulent. Similarly, Mr. Ali provided a document, stating that he was awarded a no-fault divorce overseas, which INS determined was fraudulent. Opp. Mem. at 10–11. Many of Mr. Ali's immigration documents list different birth dates and places of birth, although...