United States v. Ali

• Decision Date: 21 August 2013
• Docket Number: No. 12–3056.,12–3056.
• Citation: 718 F.3d 929
• Parties: UNITED STATES of America, Appellant v. Ali Mohamed ALI, also known as Ahmed Ali Adan, also known as Ismail Ali, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

718 F.3d 929

UNITED STATES of America, Appellant

v.Ali Mohamed ALI, also known as Ahmed Ali Adan, also known as Ismail Ali, Appellee.

No. 12–3056.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 19, 2012.

Decided June 11, 2013.

Rehearing En Banc Denied Aug. 21, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:11–cr–00106–1).

David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellant. With him on the briefs were Ronald C. Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Brenda J. Johnson, and Elizabeth Gabriel, Assistant U.S. Attorneys. Peter S. Smith, Assistant U.S. Attorney, entered an appearance.

Brian C. Brook argued the cause for appellee. With him on the brief were Matthew J. Peed and Timothy R. Clinton.

Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

BROWN, Circuit Judge:

Ali Mohamed Ali, a Somali national, helped negotiate the ransom of a merchant vessel and its crew after they were captured by marauders in the Gulf of Aden. Though he claims merely to have defused a tense situation, the government believes he was in cahoots with these brigands from the very start. Ali eventually made his way to the United States, where he was arrested and indicted for conspiring to commit and aiding and abetting two offenses: piracy on the high seas and hostage taking.

The government says Ali is a pirate; he protests that he is not. Though a trial will determine whether he is in fact a pirate, the question before us is whether the government's allegations are legally sufficient. And the answer to that question is complicated by a factor the district court deemed critical: Ali's alleged involvement was limited to acts he committed on land and in territorial waters—not upon the high seas. Thus, the district court restricted the charge of aiding and abetting piracy to his conduct on the high seas and dismissed the charge of conspiracy to commit piracy. Eventually, the district court also dismissed the hostage taking charges, concluding that prosecuting him for his acts abroad would violate his right to due process. On appeal, we affirm dismissal of the charge of conspiracy to commit piracy. We reverse, however, the district court's dismissal of the hostage taking charges, as well as its decision to limit the aiding and abetting piracy charge.

I. Background

A. Modern Piracy

Mention “pirates” to most Americans and you are more likely to evoke Johnny Depp's droll depiction of Captain Jack Sparrow than concern about the international scourge of piracy that long ago led most civilized states to declare such marauders the enemy of all mankind. In unstable parts of the world, piracy is serious business, and these troubled waters have seen a resurgence in pirate attacks, both successful and attempted. See, e.g.,Int'l Mar. Org., MSC.4/ Circ.180, Reports on Acts of Piracy and Armed Robbery Against Ships: Annual Report—2011, at 2 (2012); Int'l Mar. Org., MSC.4/Circ.169, Reports on Acts of Piracy and Armed Robbery Against Ships: Annual Report—2010, at 2 (2011). Pirate attacks have become increasingly daring, as well as commonplace, with pirates targeting large commercial vessels in transit, hijacking these ships, and ransoming the crews. See W. Michael Reisman & Bradley T. Tennis, Combating Piracy in East Africa, 35 Yale J. Int'l. L. Online 14, 16–18 (2009). These predatory activities have proven especially lucrative in the Gulf of Aden (situated between the Arabian Peninsula and the Horn of Africa and bounded by a long stretch of Somalia's coast), where pirates can exploit a key trade route undeterred by Somalia's unstable government. See Milena Sterio, The Somali Piracy Problem A Global Puzzle Necessitating A Global Solution, 59 Am. U.L.Rev. 1449, 1450–51 (2010).

B. Ali's Offense and Prosecution¹

Ali is a member of Somalia's Warsengeli clan,² which, together with the Majertein clan, plotted the capture of the CEC Future, a Danish-owned merchant ship that flew a Bahamian flag and carried cargo owned by a U.S. corporation. On November 7, 2008, while the CEC Future was traveling in the Gulf of Aden on the “high seas”— i.e., outside any nation's territorial waters, Restatement (Third) of Foreign Relations Law § 521 cmt. a (1987)—Ali's compatriots launched their attack. Wielding AK–47s and a rocket-propelled grenade, the raiders fired warning shots, boarded the ship, and seized the crew. They then forced crewmembers at gunpoint to reroute the ship to Point Ras Binna, off the coast of Somalia, where, on November 9, Ali came aboard and assumed the role of interpreter. The ship traveled that same day to Eyl, a Somali port, and remained at anchor there until it was ransomed the following January.

Except for a brief period of “minutes” during which the CEC Future entered the high seas, the ship traversed exclusively territorial waters while Ali was aboard. Ali promptly began negotiating with the owners of the CEC Future, starting with an initial demand of $7 million for the release of the ship, its crew, and its cargo. Discussions continued into January 2009, when Ali and the CEC Future's owners agreed to a $1.7 million ransom. As payment for his assistance, Ali also demanded $100,000 (a figure he later reduced to $75,000) be placed in a personal bank account. On January 14, the pirates received the agreed-upon $1.7 million, and two days later Ali and his cohorts left the ship. Ali's share amounted to $16,500—one percent of the total ransom less expenses. He later received his separate $75,000 payment via wire transfer to the account he had previously specified.

As it happens, “pirate hostage negotiator” is not the only line on Ali's resume. In June 2010, he was appointed Director General of the Ministry of Education for the Republic of Somaliland, a self-proclaimed sovereign state within Somalia. United States v. Ali (“Ali I”), 870 F.Supp.2d 10, 17 (D.D.C.2012). When he received an email in March 2011 inviting him to attend an education conference in Raleigh, North Carolina, he agreed. Id. Little did he know it was all an elaborate ruse. For some time, federal prosecutors had been busy building a case against Ali, charging him via criminal complaint and later obtaining a formal indictment. When Ali landed at Dulles International Airport on April 20, 2011, to attend the sham conference, he was promptly arrested. Id.

A grand jury issued a four-count superseding indictment against Ali, charging him first with conspiracy to commit piracy under the law of nations, in violation of 18 U.S.C. § 371, which makes it a crime for “two or more persons” to “conspire ... to commit any offense against the United States.” Invoking aiding and abetting liability under 18 U.S.C. § 2, Count Two charged Ali with committing piracy under the law of nations, in violation of 18 U.S.C. § 1651, which provides, “Whoever, 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.” Counts Three and Four analogously charged Ali with conspiracy to commit hostage taking and aiding and abetting hostage taking, in violation of 18 U.S.C. §§ 1203 and 2. The hostage taking statute prescribes criminal penalties for

whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so.

Id. § 1203(a).

Ali filed a motion to dismiss the charges as legally defective, meeting with partial success. See United States v. Ali (“Ali II”), 885 F.Supp.2d 17, 45–46 (D.D.C.2012). Beginning with the premise that the definition of piracy under international law does not encompass conspiratorial liability, the district court dismissed Count One in full, concluding § 1651, which defines piracy in terms of “the law of nations,” could not ground a conspiracy charge. See id. at 33. The court similarly refused to interpret § 371, the federal conspiracy statute, as applying to piracy under the law of nations. So read, the court said, the statute would contravene international law in a way Congress never intended. See id. at 33–34. As for Count Two, the court reasoned piracy under § 1651 and international law only concerns acts committed on the high seas and consequently limited Count Two to acts of aiding and abetting Ali committed while he was on the high seas. See id. at 32. Finally, the district court declined to dismiss Counts Three and Four, ruling that Congress intended whatever conflict exists between international law and extraterritorial application of § 1203, id. at 35, and that prosecution for extraterritorial acts of hostage taking satisfied the notice requirements of due process because Ali's piracy offenses already subjected him to the universal jurisdiction of the United States, id. at 44–45.

The district court reconsidered Counts Three and Four, however, after learning that the government had no “specific evidence” Ali had facilitated any acts of piracy while outside territorial waters, and that the CEC Future proceeded on the high seas only for a matter of minutes while Ali was aboard. See United States v. Ali (“Ali III”), 885 F.Supp.2d 55, 58 (D.D.C.2012). Due process, the court said, is satisfied only if Ali had some reasonable expectation he could be haled into an American court. So long as the government could establish that he had committed piracy on the high seas—a crime over which all nations may exercise jurisdiction—this expectation was met. But because Ali's criminal conduct took place in territorial waters, he had no notice his actions subjected him to prosecution in the United States for hostage taking. Thus, in light of the government's revelation that it...