Alert

A Primer on Prosecuting Pirates1

 

The Maersk Alabama highjacking was an unquestionably defining event-particularly in the United States-in combating the epidemic of piracy that has taken root in the Gulf of Aden in 2008-2009 despite the international task force providing convoy protection to vessels transiting the area. The vessel was captured by four Somali pirates on April 8, 2009. The reason it was of such importance from a U.S. perspective is that it was the first pirate seizure of an American flag ship since the early 1800s, and the U.S. had not focused on pirate attacks internationally until one if its own U.S. flag ships with American citizens was attacked. The event ended relatively quickly-but dramatically-on April 12, 2009, when three of the pirates were shot and killed by U.S. Navy Seal snipers. The three pirates had Captain Richard Phillips of the Maersk Alabama in custody and were shot at a moment when it appeared that Captain Phillips was in imminent danger of being killed. The shooting of the three pirates is indicative itself of how the U.S. government will respond when its citizens or U.S. flag vessels are involved in a piracy incident.

At the time of the shooting, the fourth pirate was aboard the USS Bainbridge attempting to negotiate a ransom for Captain Phillips. The fourth pirate was immediately taken into custody by the U.S. Navy and was later brought to New York to face charges. The name of the fourth pirate is Aduwa Abdukhadir Muse (“Muse”).² The prosecution of Muse is likely to establish a benchmark for how the U.S. government will handle piracy cases. Muse’s trial is scheduled to begin in January 2010.

The legal basis for fighting piracy is a concept generally referred to as universal jurisdiction and is a well established pillar of customary international law. Universal jurisdiction permits a “State to claim jurisdiction over an offender even if the offender’s act occurred outside its boundaries and even if the offender has no connection to the State.”³

In the U.S. Constitution, Article I, Section 8, Clause 10 expressly authorizes Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Congress codified its constitutional authority to “extradite or prosecute” offenders in Title 18 of the United States Code (“U.S.C.”). Under the law of nations, piracy generally is defined as an “offence against the universal law of society.”⁴ Pirates can be prosecuted under 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.

Pirates are also subject to prosecution for acts of terrorism (18 U.S.C. §2332b et seq.), violence against maritime navigation (18 U.S.C. §2280), hostage taking (18 U.S.C. §1203), kidnapping (18 U.S.C. §1201), and/or interfering with commerce by threats or violence (18 U.S.C. §1951).

The U.S. has exercised criminal jurisdiction over extraterritorial crimes in a number of cases.⁵ Of particular interest is a recent successful piracy prosecution that took place offshore the Hawaiian Islands in 2008. In United States v. Lei Shi⁶ (“Lei Shi”), the U.S. charged the defendant with “several violations of 18 U.S.C. §2280, which proscribes certain acts of violence that endanger maritime navigation. 18 U.S.C. §2280 codifies the United States’ obligations under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (“SUA Convention”), which authorizes any signatory State to extradite or prosecute offenders, regardless of where the offender’s acts occurred.”⁷ In Lei Shi, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the conviction and 36-year prison sentence of a Chinese cook who was convicted in Honolulu of forcibly seizing control of a foreign vessel in international waters and killing a Taiwanese Captain and Chinese First Mate.⁸ The Ninth Circuit’s decision is the only reported U.S. case to date interpreting the SUA Convention. This may soon change with the prosecution of Muse. On April 21, 2009, the U.S. charged Muse with violations of 18 U.S.C. §2280, among other statutes, for his alleged participation in the April 8, 2009 hijacking of the Maersk Alabama in the Indian Ocean and the subsequent taking of the Captain of the vessel as a hostage.

Muse’s court-appointed lawyers argued that he should be processed through the courts as a juvenile. However, due to conflicting information from Muse’s father, brother, and Muse himself, who told a Somali interpreter that he was a number of ages between 15 and 26, U.S. Magistrate Judge Andrew Peck issued a preliminary ruling that Muse will be tried as an adult.

The criminal complaint against Muse alleges violations of several United States’ statutes that criminalize piracy:

 

Count 1:   18 U.S.C. §1651 (Piracy, as defined by the Law of Nations)
Count 2:   18 U.S.C. §2280(a)(1)(H)(Violence against maritime navigation)
Count 3:   18 U.S.C. §924(c)(1)(A)(iii)(Possession of a machine gun during a crime of violence
Count 4:   18 U.S.C. §1203 (Hostage Taking)
Count 5:   18 U.S.C. §924(c)(1)(A)(ii) (Possession of a machine gun during a crime of violence)

 

On May 19, 2009, a Grand Jury charged Muse in a ten count indictment which alleges violations of 18 U.S.C. §§2, 924, 1201, 1203, 1651, 2280, and 3238. A detailed description of each of the alleged violations is listed below.

Count One

Muse is charged in Count One of the indictment with Piracy as defined by the law of nations in violation of 18 U.S.C. §1651.

“Piracy” traditionally has been defined as “robbery, or forcible depredations upon the sea.”⁹ “Depredation” is “the act of plundering, robbing, or pillaging.”¹⁰ All three acts require the use of force.

Count Two

Muse is charged in Count Two of the indictment with seizing control over a ship by force in violation of 18 U.S.C. §2280(a)(1)(A). Muse is also charged in Count Two of the indictment with conspiracy to seize control of a ship by force in violation of 18 U.S.C. §2280(a)(1)(H).

Count Three

Muse is charged in Count Three of the indictment with conspiracy to seize control over a ship by force in violation of 18 U.S.C. §2280(a)(1)(A) and 18 U.S.C. §2280(a)(1)(H).

Count Four

Muse is charged in Count Four of the indictment with possession of a firearm during and in relation to seizing a ship by force, which is a violation of 18 U.S.C. §924(c)(1)(B)(ii). In order to find Muse guilty of this offense, a jury must find that the government has proved each of the following three elements beyond a reasonable doubt:

1. That Muse committed the crime of seizing a ship by force as charged in Count Two of the indictment;
2. That during and in relation to the commission of that crime, Muse knowingly used or carried a firearm;¹¹ and
3. That Muse used or carried the firearm during and in relation to the crime of seizing a ship by force.¹²

In determining whether Muse used or carried a firearm in relation to seizing a ship by force, the jury may consider all of the factors received in evidence in the case including the nature of the underlying crime, how close Muse was to the firearm in question, the usefulness of the firearm to seizing a ship by force, and the circumstances surrounding the presence of the firearm.

The government is not required to show that Muse actually displayed or fired a weapon. However, the government must prove beyond a reasonable doubt that a firearm was in Muse’s possession or under his control at the time that the crime of seizing a ship by force was committed, and that the firearm facilitated or had the potential of facilitating the seizure of a ship by force.

Count Five

Muse is charged in Count Five of the indictment with hostage-taking in violation of 18 U.S.C. §1203(a). In order for Muse to be found guilty of this charge, the government must prove each of the following elements beyond a reasonable doubt:

1. Muse did intentionally seize, detain, and threaten to kill and injure a human being; and
2. Muse intentionally caused the victim to be seized, detained, and threatened in order to compel the family of the victim to pay ransom.¹³

18 U.S.C. §1203 does not require proof that the defendant acted with specific intent, and requires only that the offender acted with the purpose of influencing some third person or government through hostage-taking.

Count Six

Muse is charged in Count Six of the indictment with conspiracy to commit hostage-taking in violation of 18 U.S.C. §1203(a). In order for Muse to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

1. Muse did intentionally seize, detain, and threaten to kill and injure a human being; and
2. Muse intentionally caused the victim to be seized, detained, and threatened in order to compel the family of the victim to pay ransom.¹⁴

The indictment lists the following overt act:

1. From on or about April 8, 2009, up to and including on or about April 12, 2009, Abduwali Abdukhadir Muse, the defendant, and others, detained the Captain of the Maersk Alabama on a life boat in the Indian Ocean, and demanded safe passage from the scene in exchange for the release of the Captain.
2. While on the life boat, Muse used a radio to communicate with representatives of the U.S. government and threatened to kill the Captain unless his demands were satisfied.

Count Seven

Muse is charged in Count Seven of the indictment with possession of a firearm that is a “machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler” during and in relation to hostage-taking, which is a violation of 18 U.S.C. §924(c)(1)(B)(ii). In order to find Muse guilty of the offense charged in the indictment, the jury must find that the government proved each of the following three elements beyond a reasonable doubt:

1. Muse committed the crime of hostage-taking;
2. Muse knowingly possessed a firearm in furtherance of that crime; and
3. The firearm was a semi-automatic assault weapon, short-barreled rifle, short-barreled shotgun, machine gun, destructive device, or firearm equipped with a silencer or muffler.

The Supreme Court has held that the provisions in §924(c)(1)(B)(ii) state additional elements that must be charged in the indictment and found by the jury beyond a reasonable doubt. ¹⁵

Muse is also charged with a violation of 18 U.S.C. §924(c)(1)(C)(ii), which provides for a higher mandatory penalty of life imprisonment in the case of a second or subsequent conviction under this subsection.

Count Eight

Muse is charged in Count Eight of the indictment with kidnapping within the special maritime and territorial jurisdiction¹⁶ of the U.S. in violation of 18 U.S.C. §1201(a)(2). In order for Muse to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

1. Muse kidnapped, seized, and confined the Captain within the special maritime or territorial jurisdiction; and
2. Muse held the Captain for ransom, reward, or other benefit.

Count Nine

Muse is charged in Count Nine of the indictment with conspiracy to commit kidnapping within the special maritime and territorial jurisdiction of the U.S. in violation of 18 U.S.C. §1201(a)(2) and 18 U.S.C. §1201(c). In order for Muse to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

1. Muse kidnapped, seized, and confined the Captain within the special maritime or territorial jurisdiction; and
2. Muse held the Captain for ransom, reward, or other benefit.

The indictment lists the following overt act:

 

“in furtherance of the conspiracy and to effect the illegal object thereof, Abduwali Abdukhadir Muse, the defendant, and others known and unknown, committed the overt acts set forth in Count Six of this Indictment, which are fully incorporated by reference herein.”

 

Count Ten

Muse is charged in Count Ten of the indictment with possession of a firearm that is a “machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler” during and in relation to kidnapping, which is a violation of 18 U.S.C. §924(c)(1)(B)(ii). In order to find Muse guilty of the offense charged in the indictment, the jury must find that the government proved each of the following three elements beyond a reasonable doubt:

1. Muse committed the crime of kidnapping;
2. Muse knowingly possessed a firearm in furtherance of that crime; and
3. The firearm was a semi-automatic assault weapon, short-barreled rifle, short-barreled shotgun, machine gun, destructive device, or firearm equipped with a silencer or muffler.

Muse is also charged with a violation of 18 U.S.C. §924(c)(1)(C)(ii), which provides for a higher mandatory penalty of life imprisonment in the case of a second or subsequent conviction under this subsection.

If convicted, the offenses carry the following potential penalties:

Count	Charge	Maximum Prison Term
One	Piracy under the law of nations	Mandatory sentence of life in prison
Two	Seizing a ship by force	20 years
Three	Conspiracy to seize a ship by force	20 years
Four	Possession of a machinegun during and in relation to seizing a ship by force	Life
Five	Hostage-taking	Life
Six	Conspiracy to commit hostage-taking	Life
Seven	Possession of a machinegun during and in relation to hostage-taking	Life
Eight	Kidnapping	Life
Nine	Conspiracy to commit kidnapping	Life
Ten	Possession of a machinegun during and in relation to kidnapping	Life

Counts Four, Seven, and Ten also carry mandatory minimum penalties of 30 years in prison if the defendant is convicted on a single one of those Counts, or, if convicted of two or more of those Counts, a mandatory sentence of life in prison. In addition, Counts Two, Three, Five, Six, Eight, and Nine also carry mandatory penalties of death or imprisonment for any term of years, or life, if death of any person occurs as a result of the offense. Since the only persons who died during the offenses were Muse’s co-conspirators, the death penalty is not applicable. Thus, the maximum prison term is life imprisonment.

In addition to proving each element of these substantive charges, the government also must show some nexus to the U.S. Therefore, each Count includes a venue provision under 18 U.S.C. §3238. Because the offenses were not committed in any U.S. district, 18 U.S.C. §3238 gives the U.S. District Court for the Southern District of New York jurisdiction over Muse since it is where he was first brought into the U.S. after allegedly committing the crimes. Additionally, 18 U.S.C. §2280(b)(1)(C) “authorizes federal jurisdiction over any offender later found in the United States after a prohibited act under the Statute is committed.”¹⁷ The U.S. has an interest in prosecuting Muse in its courts for a number of reasons, including: (1) the Captain, who was held hostage, was a U.S. citizen; and (2) Muse sought to compel the U.S. government to satisfy his demands in return for the release of the Captain. Each Count¹⁸ also includes an aiding and abetting charge (18 U.S.C. §2), which allows the government to charge Muse as a principal for the crimes committed by the other alleged pirates.

In criminal cases, the government carries the burden of proof. In the case against Muse, the government must prove all the elements of the offenses being presented “beyond a reasonable doubt.”

Anticipated Defenses

At the arraignment, Muse’s attorneys entered a not-guilty plea. Muse’s defense team is expected to raise a number of legal defenses.

First, the defense is likely to raise jurisdictional questions based on the location of the pirate attack since the hijacking took place 240 nautical miles off the Somali coast, which is outside the territorial waters of any state. The defense is unlikely to prevail on this argument, however, because Article 100 of the United Nations Convention on the Law of the Sea (“UNCLOS”), provides “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”¹⁹ Moreover, both the Convention on the High Seas and UNCLOS authorize States to seize a pirate ship, or a ship taken by piracy and under the control of the pirates, and arrest the persons and seize the property on board. ²⁰ Under these conventions, the courts of the State whose forces carry out a seizure may decide the penalties to be imposed on the pirates.²¹ Moreover, in June 2008, the United Nations Security Counsel further expanded the jurisdiction of States combating piracy when it passed Resolution 1816, which authorized the international community to “enter the territorial waters of Somalia for the purpose of repressing acts of piracy” and while there authorized them to “use…all necessary means to repress act of piracy.”²² The Security Counsel adopted four additional resolutions (1838²³, 1844²⁴, 1846²⁵), concluding in December 2008 with the adoption of Resolution 1851,²⁶ which extended the power to combat and prosecute piracy until December 2009.

Second, the defense is likely to argue that Muse lacked the requisite mens rea, or specific intent, which is a required element of a crime. Muse will likely argue that he should not be held liable for the crimes because he performed them under duress. To prevail on the defense of duress, Muse must show that he did not act willfully, intentionally, or voluntarily at time of the offense charged. A defendant acts under duress only if at the time of the offense charged:

1. There was an immediate threat of death or serious bodily injury to the defendant, a family member of the defendant, if the defendant did not commit or participate in the commission of the crime;
2. The defendant had a well-grounded fear that the threat of death or serious bodily injury would be carried out; and
3. The defendant had no reasonable opportunity to escape the threatened harm.²⁷

Because the three other remaining pirates were killed during the hijacking, there is nobody to support or rebut the defense that Muse was acting under the threat of duress. In fact, after his court hearing on April 21, 2009 before Magistrate Judge Peck, Muse’s defense lawyers portrayed him as a “frightened kid” and Muse’s mother insisted that “[h]e was brainwashed [and] [p]eople who are older than him outwitted him... .”²⁸ Muse’s defense attorneys may also exploit the fact that Muse was born and raised in a county with no established government and, thus, had no choice but to turn to a life of piracy as a means of survival. Muse’s actions, however, contradict this defense. During the hijacking of the Maersk Alabama, reports indicate that Muse conducted himself not as a frightened “kid,” but rather as the ringleader of the entire operation. “Prosecutors said Muse was not shy about making his presence known on the Maersk Alabama, brazenly tearing through the ship in a way that belied his young age and skinny, 5-foot-2 frame. He was the first to board the ship, he fired a shot at the Captain, he helped steal $30,000 in cash from a safe, and he bragged about hijacking ships in the past, authorities said.”²⁹

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1. This is the second of a series of articles on piracy. The first was titled “Pirates of Somalia,” and appeared in Mainbrace, January 2009.
2. Muse’s name has been translated a number of ways. Some English language sources refer to him by the name Abduhl Wal-i-Muse.
3. See United States v. Lei Shi, 396 F. Supp. 2d 1132, 2003 (D. Haw. 2003) (Gillmor, H.), aff’d 525 F.3d 709 (9th Cir. Haw. 2008), cert. denied, 129 S. Ct. 324 (2008) quoting Stephen Macedo, Universal Jurisdiction 2-12 (2004).
4. See U.S. v. Smith, 18 U.S.C. 153 (1820) (The Supreme Court determined that Congress constitutionally enacted the predecessor of this provision under its power to define and punish piracies and felonies committed on the high seas, and offenses against law of nations.)
5. See United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003); United States v. Bin Laden, 92 F. Supp. 2d 189, 201 (S.D.N.Y. 2000), aff’d, 552 F.3d 177 (2d Cir. 2008); United States v. Shi, 525 F.3d 709, 720-24 (9th Cir. 2008); United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990); Blancas v. United States, 344 F. Supp. 2d 507, 528 (W.D. Tex. 2004).
6. See case cited supra note 3.
7. See case cited supra note 3, at 720.
8. Id.
9. See case cited supra note 4, at 161.
10. See case cited supra note 3, at 721 quoting Black’s Law Dictionary 397 (5th ed. 1979) (The definition of “plunder” includes the taking of “property from persons or places by open force.” “Robbery” is the “[f]elonious taking of . . . [any] article of value, in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Finally, the act of “pillaging” is the “forcible taking of private property by an invading or conquering army from the enemy’s subjects.”)
11. The phrase “uses or carries a firearm” means having a firearm, or firearms, available to assist or aid in the commission of the crime of piracy. “Use” means more than mere possession of a firearm by a person who commits a crime; to establish use, the government must show active employment of the firearm. If Muse did not either disclose or mention the firearm or actively employ it, then he did not use the firearm. “Carry” means that Muse had the firearm on his person or possessed the firearm.
12. During and in relation to means that the firearm must have had some purpose or effect with respect to the piracy. The firearm must have at least facilitated or had the potential of facilitating the piracy.
13. See United States v. Xue Fei Lin, 139 F.3d 1303, 1306 (9th Cir. Wash. 1998).
14. Id.
15. See Castillo v. United States, 530 U.S. 120 (2000).
16. “Special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. §7.
17. See case cited supra note 3, at 720. The Court in Lei Shi concluded that “the requirement that a defendant be ‘later found’ does not contain the implicit requirement that the defendant’s arrival in the United States be voluntary.” Id. at 725.
18. Counts three, six, and nine do not contain an aiding and abetting violation because a defendant is automatically considered a principal.
19. See United Nations Convention on the Law of the Seas (“UNCLOS”), 21 I.L.M. 1261. Convention adopted December 10, 1982. Entered into force November 16, 1994 (the United States is not a party to the Agreement).
20. See UNCLOS Article 105; also See http://fpc.state.gov/documents/organization/130809.pdf citing Cmdr. James Kraska and Capt. Brian Wilson, “Fighting Piracy,” Armed Forces Journal, February 1, 2009.
21. See UNCLOS Article 105; also see cases cited supra note 5. (The Supreme Court has granted extraterritorial jurisdiction in a number of cases involving foreign prisoners involuntarily coming under the jurisdiction of the United States.)
22. G.A. Res. 1816, U.N. Doc. S/RES/1816 (June 2, 2008).
23. G.A. Res. 1838, U.N. Doc. S/RES/1838 (October 7, 2008).
24. G.A. Res. 1844, U.N. Doc. S/RES/1844 (November 20, 2008).
25. G.A. Res. 1846, U.N. Doc. S/RES/1846 (December 2, 2008).
26. G.A. Res. 1851, U.N. Doc. S/RES/1851 (December 16, 2008).
27. See United States v. Lizalde, 38 Fed. Appx. 657, 659 (2d Cir. N.Y. 2002), cert. denied, 154 L. Ed. 2d 542 (2002), cert. denied, 537 U.S. 1059 (2002); 2006 U.S. Dist. LEXIS 97933 (E.D.N.Y., Feb. 28, 2006) (post-conviction proceeding).
28. See “Prosecutors: Young Pirate Brash, Brazen,” New York, April 22, 2009. http://www.cbsnews.com/
29. Id.

Notice: The purpose of this newsletter is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Advisory should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel. Additional information on Blank Rome may be found on our website www.blankrome.com.