U.S. v. Said

• Decision Date: 17 August 2010
• Docket Number: Criminal Action No. 2:10cr57.
• Citation: 757 F.Supp.2d 554
• Parties: UNITED STATES of America,v.Mohamed Ali SAID, a/k/a Maxamad Cali Saciid, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

757 F.Supp.2d 554

UNITED STATES of America,

v.Mohamed Ali SAID, a/k/a Maxamad Cali Saciid, et al., Defendants.

Criminal Action No. 2:10cr57.

United States District Court, E.D. Virginia,Norfolk Division.

Aug. 17, 2010.

Raymond E. Patricco, Jr., United States Attorney's Office, Alexandria, VA, Benjamin Lucas Hatch, U.S. Attorney Office, Richmond, VA, Jerome Teresinski, U.S. Department of Justice, Washington, DC, Joseph E. Depadilla, United States Attorney's Office, Norfolk, VA, for United States of America.Arenda Lauretta Wright Allen, Keith Loren Kimball, Office of the Federal Public Defender, Norfolk, VA, Geremy C. Kamens, Office of Federal Public Defender, Alexandria, VA, for Defendants.

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before the Court is the Joint Motion of Defendants to Dismiss Count One of the Superseding Indictment pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. The Court held a hearing on this motion on July 29, 2010. For the reasons stated herein, the Defendants' Motion to Dismiss Count One is GRANTED.

I. FACTUAL AND PROCEDURAL HISTORY

Defendants were named in a live-count Indictment on April 21, 2010. On July 7, 2010, the Government filed an eight-count Superseding Indictment. The Government alleges that on or about April 10.2010, around 5:00 a.m., Defendants approached the USS Ashland in a small skiff in the Gulf of Aden. As Defendants' skiff became even with the USS Ashland on the USS Ashland's port side, at least one person on Defendants' skiff raised and shot a firearm at the USS Ashland. The USS Ashland responded by returning fire, destroying the skiff, and killing one of the passengers. At no time did Defendants board or attempt to board the USS Ashland. The USS Ashland crew members observed in the burning skiff, among other things, the remains of an AK–47 style firearm. Crew members of the USS Ashland then took Defendants into custody.

On June 9, 2010, Defendants filed the above-referenced motion. The Government filed a response to this motion on June 21, 2010. Defendants filed a reply on June 28, 2010. A hearing was held on this matter on July 29, 2010. All Defendants jointly move the Court to dismiss Count One of the Superseding Indictment, which alleges that Defendants “committed the crime of piracy as defined by the law of nations,” in violation of 18 U.S.C. § 1651. Defendants argue that the Count should be dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure because under no set of facts was the offense of “piracy” committed where Defendants did not board or take control of the USS Ashland and did not obtain anything of value from it. (Def.'s Mot. to Dismiss 1.) The Government argues in response that this motion should be denied because piracy has historically included different types of conduct and is not limited to the common law definition of robbery on land. (Govt's Resp. 2.) More specifically, the Government asserts that piracy, as defined by the law of nations, does not require the actual taking of property: rather, any unauthorized armed assault or directed violent act on the high seas is sufficient to constitute piracy. (Govt's Resp. 2–3.)

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 12(b)(2) states that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Included in the motions that may be made before trial is “a motion alleging a defect in the indictment or information.” Fed.R.Crim.P. 12(b)(3). A 12(b) motion is permissible only when “it involves a question of law rather than fact.” United States v. Shabbir, 64 F.Supp.2d 479, 481 (D.Md.1999) (citing United States v. Nukida, 8 F.3d 665, 669 (9th Cir.1993) (internal citation omitted)).

To survive Defendants' Motion to Dismiss Count One, the indictment must allege that Defendants committed acts which, if proven, would sustain a violation of 18 U.S.C. § 1651. Title 18 U.S.C. § 1651 states, “[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” This statute was originally enacted in 1819, and as is the case with the current version, the 1819 version did not specifically identify what conduct constituted “piracy as defined by the law of nations.”

Article I of the United States Constitution grants Congress the power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” U.S. Const. Art. I § 8. Inherent in this grant is the understanding that a set of international laws separate from domestic United Slates law exists. See Ex Parte Quirin, 317 U.S. 1, 29–30, 63 S.Ct. 2, 87 L.Ed. 3 (1942). The “law of nations” refers to the body of law known as “customary international law.” See Flores v. S. Peru Copper Corp., 343 F.3d 140, 154 (2d Cir.2003). The courts considering the phraseology “law of nations,” in the civil context have held that in determining what offenses violate the law of nations, “courts must proceed with extraordinary care and restraint.” as there is no single, definitive source on what constitutes customary international law. See Guinto v. Marcos, 654 F.Supp. 276, 279 (S.D.Cal.1986) (noting that “there is no universally accepted definition of this phrase”). Generally, one of the key determinations of what principles arc a part of international law is that countries must universally abide by the principles out of a sense of legal obligation and mutual concern. Flores, 343 F.3d at 154 (citing Filartiga v. Pena–Irala, 630 F.2d 876, 888 (2d Cir.1980) (“customary international law includes only well established, universally recognized norms of international law”)). Moreover, for a particular rule to be a part of customary law in the international community, courts must look first to concrete evidence of the customs and practices of the countries through formal laws and judicial actions, and second to the work of scholars. Flores, 343 F.3d at 156. Thus, the myriad of decisions upon which the Court must rely must be unambiguous and clear to give rise to a rule of customary international law under the law of nations. Id.

Despite its reference to international law, piracy under the law of nations in § 1651, as with every other criminal statute in the United States criminal code, is subject to the constitutional rigors of due process. At a minimum, constitutional due process requires fair warning of the charged conduct. See United States v. Hassan, 542 F.3d 968, 978 (2d Cir.2008). Accordingly, the principle of due process is “that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954)). This “fair warning requirement” bars enforcement of “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).

Furthermore, as a corollary point to the vagueness doctrine, “the cannon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” Lanier, 520 U.S. at 266, 117 S.Ct. 1219. Finally, due process bars courts from setting forth a “novel” construction of a criminal statute “to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” Id.

III. DISCUSSION

For the first time since 1820, this Court is faced with the task of interpreting the piracy statute, 18 U.S.C. § 1651, as it applies to alleged conduct in international waters. As detailed above, Defendants contend that Count One should be dismissed because it is undisputed that Defendants did not board, take control, or otherwise rob the USS Ashland; therefore, under no set of facts did Defendants commit the offense of “piracy” as defined by the United States Supreme Court (“Supreme Court”) in United States v. Smith, 18 U.S. 153, 5 Wheat. 153, 5 L.Ed. 57 (1820) (Story, J.). Relying in part on contemporary international law, the Government's argument is essentially two-fold: (1) the definition of “piracy, defined by the law of nations” includes, and has always included, any unauthorized violent acts or attacks committed on the high seas without lawful authority against another ship; and (2) this definition of piracy faces no constitutional vagueness issues because it is sufficiently defined to provide Defendants with reasonable notice. The Court will consider these arguments in turn.

A. Smith is the Definitive Authority on the Definition of Piracy Under Title 18 U.S.C. § 1651.

The Court must interpret a statute by its ordinary meaning at the time of its enactment. Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 275, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) (“Courts interpret Congress' use of a term in light of its history, and presume Congress intended the phrase to have the meaning generally accepted in the legal community at the time of its enactment”); see Norfolk S. Ry. Co. v. Bhd. of Locomotive Eng'rs, 217 F.3d 181, 188–89 (4th Cir.2000) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (“We attempt to infer how the ... Congress [at the time of enactment] would have addressed the issue.”)). This rule applies whether the statute at issue is criminal or civil. See United States v. Cardenas, 864 F.2d 1528, 1535 (10th Cir.1989) (noting that “there is no...