United States v. Dire

• Decision Date: 23 May 2012
• Docket Number: 11–4313,Nos. 11–4310,11–4312.,11–4317,11–4311,s. 11–4310
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Abdi Wali DIRE, Defendant–Appellant. Office of the Federal Public Defender, Amicus Supporting Appellant. United States of America, Plaintiff–Appellee, v. Gabul Abdullahi Ali, Defendant–Appellant. Office of the Federal Public Defender, Amicus Supporting Appellant. United States of America, Plaintiff–Appellee, v. Abdi Mohammed Umar, Defendant–Appellant. Office of the Federal Public Defender, Amicus Supporting Appellant. United States of America, Plaintiff–Appellee, v. Abdi Mohammed Gurewardher, Defendant–Appellant. Office of the Federal Public Defender, Amicus Supporting Appellant. United States of America, Plaintiff–Appellee, v. Mohammed Modin Hasan, Defendant–Appellant. Office of the Federal Public Defender, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

680 F.3d 446

UNITED STATES of America, Plaintiff–Appellee,

v.Abdi Wali DIRE, Defendant–Appellant.

Office of the Federal Public Defender, Amicus Supporting Appellant.

United States of America, Plaintiff–Appellee,

v.Gabul Abdullahi Ali, Defendant–Appellant.

Office of the Federal Public Defender, Amicus Supporting Appellant.

United States of America, Plaintiff–Appellee,

v.Abdi Mohammed Umar, Defendant–Appellant.

Office of the Federal Public Defender, Amicus Supporting Appellant.

United States of America, Plaintiff–Appellee,

v.Abdi Mohammed Gurewardher, Defendant–Appellant.

Office of the Federal Public Defender, Amicus Supporting Appellant.

United States of America, Plaintiff–Appellee,

v.Mohammed Modin Hasan, Defendant–Appellant.

Office of the Federal Public Defender, Amicus Supporting Appellant.

Nos. 11–4310, 11–4313, 11–4311, 11–4317, 11–4312.

United States Court of Appeals,Fourth Circuit.

Argued Sept. 20, 2011.

Decided May 23, 2012.

ARGUED:James R. Theuer, Norfolk, Virginia; Jon Michael Babineau, Riddick Babineau, PC, Norfolk, Virginia; David Wayne Bouchard, David Wayne Bouchard, Chesapeake, Virginia, for Appellants. Benjamin L. Hatch, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:William James Holmes, Virginia Beach, Virginia, for Appellant Gabul Abdullahi Ali; James E. Short, James E. Short, PLC, Chesapeake, Virginia, for Appellant Abdi Mohammed Umar. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Joseph E. DePadilla, Assistant United States Attorney, John S. Davis, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee. Michael S. Nachmanoff, Federal Public Defender, Geremy C. Kamens, Assistant Federal Public Defender, Jeffrey C. Corey, Research & Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Amicus Supporting Appellants.

Before KING, DAVIS, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge DAVIS and Judge KEENAN joined.

OPINION

KING, Circuit Judge:

In the early morning hours of April 1, 2010, on the high seas between Somalia and the Seychelles (in the Indian Ocean off the east coast of Africa), the defendants—Abdi Wali Dire, Gabul Abdullahi Ali, Abdi Mohammed Umar, Abdi Mohammed Gurewardher, and Mohammed Modin Hasan—imprudently launched an attack on the USS Nicholas, having confused that mighty Navy frigate for a vulnerable merchant ship. The defendants, all Somalis, were swiftly apprehended and then transported to the Eastern District of Virginia, where they were convicted of the crime of piracy, as proscribed by 18 U.S.C. § 1651, plus myriad other criminal offenses. In this appeal, the defendants challenge their convictions and life-plus-eighty-year sentences on several grounds, including that their fleeting and fruitless strike on the Nicholas did not, as a matter of law, amount to a § 1651 piracy offense. As explained below, we reject their contentions and affirm.

I.

A.

According to the trial evidence, the USS Nicholas was on a counter-piracy mission in the Indian Ocean when, lit to disguise itself as a merchant vessel, it encountered the defendants shortly after midnight on April 1, 2010. ¹ The Nicholas was approached by an attack skiff operated by defendant Hasan and also carrying defendants Dire and Ali, while defendants Umar and Gurewardher remained with a larger mother-ship some distance away. From their posts on the Nicholas, crew members could see by way of night-vision devices that Hasan was armed with a loaded rocket-propelled grenade launcher (commonly referred to as an “RPG”), and that Dire and Ali carried AK–47 assault rifles.

The captain of the USS Nicholas, Commander Mark Kesselring, directed his gunners to man their stations and prepare to fire, and ordered his unarmed personnel inside the skin of the ship for safety. When the defendants' attack skiff was within sixty feet of the Nicholas's fantail (its lowest and thus most accessible point), Dire and Ali discharged the first shots—bursts of rapid, automatic fire from their AK–47s aimed at the Nicholas and meant to attain its surrender. The Nicholas's crew responded in kind, resulting in an exchange of fire that lasted less than thirty seconds. Bullets from Dire and Ali's AK–47s struck the Nicholas near two of its crew members, but the defendants' brief attack was (thankfully) casualty-free. Dire, Ali, and Hasan then turned their skiff and fled, with the Nicholas in pursuit.

During the chase, sailors on the USS Nicholas observed a flashing light on the horizon—a beacon from Umar and Gurewardher to lead the attack skiff back to the mothership. Commander Kesselring, however, managed to keep the Nicholas between the defendants' two vessels to thwart the attempted reunion. Meanwhile, Dire, Ali, and Hasan threw various items from the skiff overboard into the Indian Ocean, discarding the RPG, the AK–47s, and a ladder that would have enabled them to board the Nicholas. About thirty minutes into the pursuit, the Nicholas captured the three defendants in the skiff. Thereafter, the Nicholas chased and captured the two defendants in the mothership. A suspected second attack skiff, which had appeared on radar but did not close on the Nicholas, was never found.

The defendants' strike on the USS Nicholas was consistent with an accustomed pattern of Somali pirate attacks, designed to seize a merchant ship and then return with the vessel and its crew to Somalia, where a ransom would be negotiated and secured. Indeed, on April 4, 2010, during questioning aboard the Nicholas, the defendants separately confessed to participating willingly in a scheme to hijack a merchant vessel, and they provided details about their operation.

B.

The grand jury in the Eastern District of Virginia returned a six-count indictment against the defendants on April 20, 2010, and a fourteen-count superseding indictment (the operative “Indictment”) on July 7, 2010. The Indictment, which alleged facts consistent with the subsequent trial evidence, contained the following charges:

• Count One—Piracy as defined by the law of nations (18 U.S.C. § 1651);

• Count Two—Attack to plunder a vessel (18 U.S.C. § 1659);

• Count Three—Act of violence against persons on a vessel (18 U.S.C. §§ 2291(a)(6) and 2290(a)(2));

• Count Four—Conspiracy to perform an act of violence against persons on a vessel (18 U.S.C. §§ 2291(a)(9) and 2290(a)(2));

• Counts Five and Six—Assault with a dangerous weapon within a special maritime jurisdiction (18 U.S.C. § 113(a)(3));

• Counts Seven and Eight—Assault with a dangerous weapon on federal officers and employees (18 U.S.C. § 111(a)(1) and (b));

• Count Nine—Conspiracy involving a firearm and a crime of violence (18 U.S.C. § 924( o ));

• Counts Ten and Eleven—Using, carrying, and possessing a firearm in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii));

• Count Twelve—Using, carrying, and possessing a destructive device in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii));

• Count Thirteen—Carrying an explosive during the commission of a felony (18 U.S.C. § 844(h)(2)); and

• Count Fourteen—Conspiracy to carry an explosive during the commission of a felony (18 U.S.C. § 844(m)).²

The Indictment identified the Eastern District of Virginia as the proper venue under 18 U.S.C. § 3238, which provides that “[t]he trial of all offenses begun or committed upon the high seas ... shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought.”

At the conclusion of an eleven-day trial, conducted between November 9 and 24, 2010, the jury returned separate verdicts of guilty against all defendants on all counts. The sentencing hearing took place on March 14, 2011, and final judgments were entered on March 18, 2011. The district court dismissed Count Thirteen for being multiplicitous with Count Twelve, and sentenced each of the defendants to life plus eighty years (960 months) on the remaining convictions. Specifically, the court imposed mandatory life sentences for the Count One piracy offense; concurrent sentences of 120 months each on Counts Two, Five, and Six, and of 240 months each on Counts Three, Four, Seven, Eight, Nine, and Fourteen; plus consecutive sentences of 300 months each on Counts Ten and Eleven, and of 360 months on Count Twelve. The defendants have timely noted their appeals, and we possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.

In these consolidated appeals, the defendants first contend that their ill-fated attack on the USS Nicholas did not constitute piracy under 18 U.S.C. § 1651, which provides in full:

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.

According to the defendants, the crime of piracy has been narrowly defined for purposes of § 1651 as robbery at sea, i.e., seizing or otherwise robbing a vessel. Because they boarded the Nicholas only as captives and indisputably took no property, the defendants contest their convictions on Count One, as well as the affixed life sentences.

A.

The defendants' piracy contention is one that they unsuccessfully presented at multiple stages of the district court proceedings. Prior to their trial, the defendants moved to dismiss Count One under Rule 12 of the Federal Rules of Criminal Procedure. By its published opinion of October 29, 2010, the district court denied relief, premised on its determination that the Indictment “set forth facts that are sufficient, if proven true, to constitute the crime of piracy as defined by the law of nations, in violation of 18 U.S.C. § 1651.” United States v. Hasan, 747 F.Supp.2d 599, 602 (E.D.Va.2010) ( “Hasan I ”).³ In so ruling, the court concluded—contrary to the defendants' posited robbery requirement—that piracy as defined...