United States v. Ali

• Decision Date: 25 May 2012
• Docket Number: Criminal No. 11–0106.
• Citation: 870 F.Supp.2d 10
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES of America v. Ali Mohamed ALI, Defendant.

870 F.Supp.2d 10

UNITED STATES of America

v.Ali Mohamed ALI, Defendant.

Criminal No. 11–0106.

United States District Court, District of Columbia.

May 25, 2012.

Brenda J. Johnson, Jennifer Ellen Levy, Ann H. Petalas, U.S. Attorney's Office, Washington, DC, for United States of America.

Matthew J. Peed, Timothy Ryan Clinton, Clinton & Peed, PLLC, Washington, DC, Brian C. Brook, Simon & Partners LLP, New York, NY, for Defendant.

REDACTED MEMORANDUM OPINION^*

ELLEN SEGAL HUVELLE, District Judge.

Defendant Ali Mohamed Ali is charged with conspiracy, aiding and abetting, piracy, and hostage taking as a result of the hijacking of the M/V CEC Future, a Bahamian-flagged cargo ship owned by Clipper Group A/S, a Danish company.¹ On November 7, 2008, the CEC Future was sailing in the Gulf of Aden, off the coast of Yemen, when it was seized by Somali pirates. The pirates forced the crew to navigate the ship to Point Raas Binna, near the Somali coast. There, sometime on November 9 or 10, Ali boarded the ship before it sailed to waters near Eyl, Somalia. The government alleges that while the ship was under the pirates' control, Ali communicated ransom demands from the pirates to Clipper. Initially, Ali communicated with “Steven,” a negotiator hired by Clipper, but as the incident wore on, Ali began communicating directly with Per Gullestrup, Clipper's CEO. The government further alleges that, as Ali negotiated a ransom of $1.7 million for the release of the ship, he also negotiated a separate payment of $75,000 for himself. On January 16, 2009, after Clipper paid the $1.7 million, Ali and the pirates disembarked the ship. Ali allegedly received the $75,000 from Clipper on or about January 27, 2009.

Before the Court are two motions in limine brought by the government seeking to preclude the admission of certain evidence relating to Ali's mental state; ² defendant's motion for the admission of other acts evidence; ³ and defendant's motion to suppress evidence which he alleges was illegally obtained.⁴ For the reasons stated below, the Court will deny the government's motions in limine, grant the defendant's motion for the admission of other acts evidence, and deny the defendant's motion to suppress.

FACTUAL BACKGROUND

Ali was born in Yemen on June 26, 1962. (Def. Mot. to Suppress, Ex. 2 at 1.) He spent most of his childhood in Mogadishu, Somalia, before coming to the United States in December 1981 on a student visa and subsequently attaining asylee status. [redacted]

In 2001, Ali moved to Memphis, Tennessee, where he worked for a wireless telephone company. [redacted]

In 2005, Ali moved to Washington, D.C., where he worked as a taxi cab driver. [redacted]

[redacted]

[redacted]

Among his purported anti-piracy efforts, Ali includes his role in the CEC Future incident, as well as in a number of other piracy incidents. In June 2008, before the CEC Future was hijacked, Somali pirates attacked the Rockall, and took its owners, a German couple, to shore in Somalia and held them there. (Defendant's Motion for a Deposition Under Federal Rule of Criminal Procedure 15, March 6, 2012 [Dkt. No. 128] (under seal), Ex. 2 at 1.) Ali was asked by a friend to assist in negotiating the couple's release. ( Id. at 1–2; see Def. Mot. to Suppress at 6–7.) In July 2008, Ali traveled to the area where they were being held, camped with them, brought them medicine and supplies, and acted as a go-between for the German government and the kidnappers. ( Id.;see Def. Mot. for Pretrial Rel., Exs. 1, 2, 10, 11.) The couple was released in August 2008 after a $1 million ransom was paid. (Def. Mot. to Suppress, Ex. 2 at 3.) [redacted]

A day or two after Ali boarded the CEC Future, on November 11 or 12, 2008, Somali pirates captured the M/V Karagöl, a chemical tanker owned by a Turkish company, and forced its captain to navigate the ship to an area near Eyl where it dropped anchor next to the CEC Future. ( Id., Ex. 2 at 4; Government's Motion in Limine to Introduce Direct Evidence of the Conspiracy, March 2, 2012 [Dkt. No. 117] (“Gov't Karagöl Mot.”) at 2.) Ali alleges that one of the CEC Future pirates ordered Ali to board the Karagöl and translate demands from those pirates to the Turkish company. (Def. Mot. to Suppress, Ex. 2 at 4, 6; see id., Ex. 9 at 1268; Gov't Karagöl Mot. at 2–3.) Ali allegedly made many trips back-and-forth between the CEC Future and the Karagöl, but his role with regard to the latter ship ended in late November 2008.⁵ ( Id. at 3.)

In February 2009, after the release of the CEC Future, Per Gullestrup asked Ali for help in reaching the pirates who had taken another ship, the Stolt Strength, and the two corresponded about that piracy for a number of months. ( See Def. Mot. for Pretrial Rel., Exs. 4, 16, 17, 18, 33.) [redacted]Finally, in October 2009, the De Xin Hai, a Chinese merchant ship, was hijacked, as was the Lynn Rival, a yacht owned by a British couple. Ali corresponded with [redacted],⁶ a global crisis management consultant, about both piracies, and with Gullestrup and others about the Lynn Rival. ( See id., Exs. 4–5, 7–8; Def. Mot. for Pretrial Rel., Exs. 6–7; Def. Mot. to Suppress, Ex. 18.)

In November 2010, while Ali was still in Somalia, he was charged by a criminal complaint filed in this Court for his role aboard the CEC Future, and a warrant for his arrest was issued. (Gov't Suppression Opp'n at 1; see Complaint, Nov. 10, 2010 [Dkt. No. 1]; Arrest Warrant, Nov. 10, 2010 [Dkt. No. 52].) Ali was formally indicted on April 15, 2011. ( See Indictment, April 15, 2011 [Dkt. No. 6].⁷) About a year prior, in June 2010, Ali had been appointed the Director General of the Ministry of Education in Somaliland, a self-declared republic within Somalia. (Def. Mot. for Pretrial Rel., Ex. 41 at 2.) In March 2011, Ali received an email which purported to be from a United States foundation inviting him to attend a conference on education in Raleigh, North Carolina. (Def. Mot. to Suppress at 14.) When Ali traveled to the United States for the conference, he was arrested upon his arrival at Dulles International Airport on April 20, 2011. ( Id. at 1.)

ANALYSIS

I. THE ADMISSIBILITY OF CERTAIN EVIDENCE PERTAINING TO ALI'S INTENT

The parties agree that Ali's “ ‘intent in conducting the negotiations for the pirates [aboard the CEC Future ] is expected to be the primary issue at trial.’ ” (Def Omnibus Opp'n at 3 (emphasis in the original) (quoting “Gov't Karagöl Mot.” at 9).) Ali seeks to introduce evidence to show that he opposed the goals of the pirates and acted “to shorten the crew's ordeal, protect their lives, and collect intelligence on pirates for the benefit of the United States and the seafaring community.” ( Id. at 3.⁸) The government has moved to exclude such evidence, arguing that it is has no bearing on whether Ali intended to commit the acts alleged in the indictment.

Under the Federal Rules of Evidence, relevant evidence is generally admissible and irrelevant evidence is not admissible. Fed.R.Evid. 402. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Id. Rule 401. For purposes of deciding the government's motions, the fact of consequence in determining the action is Ali's mental state, or mens rea, and evidence relating to it is relevant if such evidence would tend to make it more or less probablethat Ali committed the acts described in the indictment with the intent required for any of the crimes charged therein. Id. Furthermore, the Rules provide that evidence of Ali's “other acts is not admissible to prove [his] character in order to show that on a particular occasion [he] acted in accordance with the character,” id.Rule 404(b)(1), but such evidence “may be admissible” to prove, inter alia, Ali's “intent.” Id.Rule 404(b)(2).

Ali is charged with conspiracy to commit piracy under the law of nations (Count One) in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1651, piracy under the law of nations (Count Two) in violation of 18 U.S.C. § 1651, conspiracy to commit hostage taking (Count Three) in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1203, and hostage taking (Count Four) in violation of 18 U.S.C. § 1203. Counts Two and Four charge Ali with both the substantive offenses and with aiding and abetting in violation of 18 U.S.C. § 2. (Ind. at 1–6.)

Conspiracy and aiding and abetting are inchoate crimes. United States v. Bailey, 444 U.S. 394, 405, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (conspiracy is an “inchoate offense[ ]”); United States v. Seals, 130 F.3d 451, 463 (D.C.Cir.1997) (aiding and abetting is an “inchoate offense[ ]”).

This is to say, that, although the law generally makes criminal only antisocial conduct, at some point in the continuum between preparation and consummation, the likelihood of a commission of an act is sufficiently great and the criminal intent sufficiently well formed to justify the intervention of the criminal law.

United States v. Feola, 420 U.S. 671, 694, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (citation omitted). Because of their focus on an “agreement to engage in a criminal venture,” id.,⁹ “laws against conspiracy ... criminalize speech ... that is intended to ... commence illegal activities.” United States v. Williams, 553 U.S. 285, 298, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (emphasis added). Where a particular kind of criminal intent is absent, so, too, is criminal liability. The same can be said of aiding and abetting.¹⁰ Thus, under “the law of inchoate offenses ... a heightened mental state separates criminality itself from otherwise innocuous behavior.” Bailey, 444 U.S. at 405, 100 S.Ct. 624.¹¹

Courts sometimes refer to this “heightened mental state” as one of “specific intent.” See United States v. Moore, 651 F.3d 30, 92 (D.C.Cir.2011) (“An aiding and abetting conviction require[s] proof that [the defendant] had ... the specific intent to...