U.S. v. Hasan

747 F.Supp.2d 599

UNITED STATES of America

v.Mohammed Modin HASAN, Gabul Abdullahi Ali, Abdi Wali Dire, Abdi Mohammed Gurewardher, Abdi Mohammed Umar, Defendants.

Criminal No. 2:10cr56.

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

Oct. 29, 2010.

John S. Davis, Esq., Benjamin L. Hatch, Esq., Jerome Teresinski, Esq., Joseph E. DePadilla, Esq., for Government.James R. Theuer, Esq., for Mohammed Modin Hasan.William J. Holmes, Esq., for Gabul Abdullahi Ali.David W. Bouchard, Esq., for Abdi Wali Dire.Jon M. Babineau, Esq., for Abdi Mohammed Gurewardher.James E. Short, Esq., for Abdi Mohammed Umar.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on motions to dismiss Count One of the Superseding Indictment filed by defendants Mohammed Modin Hasan (“Hasan”), Gabul Abdullahi Ali (“Ali”), Abdi Wali Dire (“Dire”), Abdi Mohammed Gurewardher (“Gurewardher”), and Abdi Mohammed Umar (“Umar”) (collectively, the “Defendants”). Count One charges Defendants with the offense of piracy as defined by the law of nations, in violation of 18 U.S.C. § 1651. The motions have been fully briefed, the Court has heard oral argument, and the matter is now ripe for decision. After careful consideration, and for the reasons explained in greater detail below, the Court DENIES Defendants' motions to dismiss Count One of the Superseding Indictment.

I. BACKGROUND ¹

The United States (“Government”) alleges that sometime in March 2010, Defendants set off from Somalia in a seagoing vessel in search of a merchant ship to attack and plunder. Shortly after midnight on the morning of April 1, 2010, somewhere on the high seas between Somalia and the Seychelles, Defendants sighted what they believed to be a merchant ship. Hasan, Ali, and Dire thereafter boarded one of two small assault boats moored to the seagoing vessel and set out to attack the perceived merchant ship. To facilitate their attack, Hasan carried a rocket-propelled grenade (“RPG”), and Ali and Dire each carried an AK–47 assault rifle. Gurewardher and Umar meanwhile remained on board the seagoing vessel.

As the crew of the assault boat approached their target, Ali and Dire raised their assault rifles and opened fire on the vessel. To the surprise of Hasan, Dire, and Ali, what they had until then believed to be a merchant vessel quickly revealed itself to be the USS Nicholas, a United States Navy frigate. After the USS Nicholas returned fire, Hasan, Dire, and Ali fled the scene in their assault boat. The USS Nicholas gave chase, eventually capturing the assault boat, Hasan, Ali, and Dire. The USS Nicholas thereafter searched for, found, and captured the seagoing vessel, along with Gurewardher and Umar.

On April 20, 2010, a federal grand jury returned a six-count Indictment against Defendants. Docket No. 1. On July 7, 2010, a federal grand jury returned a Superseding Indictment charging Defendants with a total of fourteen counts. Docket No. 63. Count One of the Superseding Indictment charges Defendants with piracy, in violation of 18 U.S.C. § 1651. Section 1651 provides that “[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.” 18 U.S.C. § 1651. The remaining counts of the Superseding Indictment charge Defendants with various acts of violence, assaults with a dangerous weapon, and illegal possession of firearms and an explosive device.

Each Defendant filed a motion to dismiss Count One of the Superseding Indictment. Docket Nos. 71, 83, 86, 88, 95, 105, 116. The Government responded to Defendants' motions to dismiss in a single consolidated filing submitted to the Court on July 30, 2010. Docket No. 118. On August 5, 2010, Hasan, Ali, Dire, and Gurewardher filed a Joint Reply Brief in Support of Their Motions to Dismiss Count One. Docket No. 126. After briefing by the parties was complete, the Court heard oral argument on September 10, 2010. ²

II. LEGAL STANDARD

The instant motions are filed pursuant to Rule 12 of the Federal Rules of Criminal Procedure. Rule 12(b)(2) provides 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.” Fed.R.Crim.P. 12(b)(2). Rule 12(b)(3)(B) further states that “a motion alleging a defect in the indictment” by a defendant “must be raised before trial,” but that “at any time while the case is pending, the court may hear a claim that the indictment ... fails ... to state an offense.” Fed.R.Crim.P. 12(b)(3). A Rule 12(b)(2) motion asserting that the facts stated in an indictment fail to satisfy the elements of the offense, which may be brought as a pretrial motion,

is also a correlate of what is now expressly described as a Rule 12(b)(3) motion “alleging a defect in the indictment or information,” such as a claim that the indictment “fails ... to state an offense,” which Rule 12(b)(3) provides may be heard “at any time while the case is pending.” The correlation is apparent, because the court cannot determine whether the indictment fails to state an offense unless the court first determines the elements of the offense.

United States v. Salazar–Montero, 520 F.Supp.2d 1079, 1084 (N.D.Iowa 2007) (quoting Fed.R.Crim.P. 12(b)(3)(B)) (internal citation omitted).

Therefore, to survive a motion to dismiss sought pursuant to Rule 12, an indictment must allege facts that, if proven true, would sustain a violation of the offense charged. United States v. Shabbir, 64 F.Supp.2d 479, 481 (D.Md.1999). Defendants contend that Count One fails to state an offense because, even if the facts alleged are true, such facts do not satisfy the elements of the charged offense. Accordingly, Defendants' motions to dismiss Count One should only be granted if the Superseding Indictment fails to 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.

III. HISTORICAL CONTEXT

For centuries, pirates have been universally condemned as hostis humani generis—enemies of all mankind—because they attack vessels on the high seas, and thus outside of any nation's territorial jurisdiction, without pretense of state authority, irrespective of the target vessel's nationality, and with devastating effect to global commerce and navigation. See generally Eugene Kontorovich, Implementing Sosa v. Alvarez–Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 Notre Dame L.Rev. 111, 139–53 (2004) (identifying the unique characteristics of piracy that make it a universally cognizable international offense) [hereinafter Kontorovich, Implementing Sosa ]. As a result of a dramatic increase in the incidents of piracy at sea off the coast of Somalia in recent years, members of the international community (including the United States) have deployed naval vessels in an effort to suppress such activity. See S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008), S.C. Res. 1897, U.N. Doc. S/RES/1897 (Nov. 30, 2009) & S.C. Res.1918, U.N. Doc. S/RES/1918 (Apr. 27, 2010), available at http:// www. un. org/ documents/ scres. htm. Now, as a result of such participation, and after a long lapse in the prosecution of piracy in the United States, ³ the Government has charged these Defendants, and others, with “piracy as defined by the law of nations,” or, as it is also known, “general piracy,” “piracy jure gentium,” or “the international crime of piracy.” ⁴

In seeking dismissal of the piracy charge, Defendants challenge whether the acts alleged by the Government, namely the attack on the USS Nicholas, constitute piracy as defined by the law of nations. In short, Defendants contend that general piracy requires a robbery on the high seas, and that, because robbery requires the “taking” of property,⁵ the Government's failure to allege any actual taking precludes a conviction for general piracy. By asserting that the Government has failed properly to allege the elements of the piracy charge contained in the Superseding Indictment, Defendants present the Court with a straightforward question: what is the definition of piracy under the law of nations? To answer this question, the Court must first examine piracy's modern origins and historical development, in order to provide the proper backdrop for assessing the contours of general piracy under United States law. The most appropriate place to begin such an inquiry is with the nation's founding document, the source from which the Judiciary and the other branches of the United States government derive their authority to define, enforce, and adjudicate criminal offenses: the United States Constitution.

A. The “Define and Punish” Clause

The Constitution provides that “[t]he Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” U.S. Const. art. I, § 8, cl. 10. The “Define and Punish Clause” authorizes Congress to proscribe, and prescribe punishments for, three distinct sets of offenses: (1) “Piracies ... committed on the high Seas,” (2) “Felonies committed on the high Seas,” and (3) “Offenses against the Law of Nations.” United States v. Shi, 525 F.3d 709, 721 (9th Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 324, 172 L.Ed.2d 234 (2008) (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 158–59, 5 L.Ed. 57 (1820)). To comprehend fully the breadth of Congress's power to “define and punish Piracies,” and discern the guiding principles by which any statute passed pursuant to such power must be interpreted, it is important to examine the Framers' understanding of piracy at the time of the nation's founding, and review the unique characteristics that have for centuries distinguished piracy from all other crimes.

1. Piracy at the Founding

During the Constitutional Convention of 1787, it appears that the...