United States v. Ali

885 F.Supp.2d 17

UNITED STATES of America

v.Ali Mohamed ALI, Defendant.

Criminal No. 11–0106.

United States District Court, District of Columbia.

July 13, 2012.

Brenda J. Johnson, Ann H. Petalas, Fernando Campoamor–Sanchez, 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, Clinton & Peed, PLLC, New York, NY, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

On November 7, 2008, pirates attacked and seized the M/V CEC Future as it was sailing in the Gulf of Aden, near the Horn of Africa. They held the ship and its crew hostage in order to secure a ransom from Clipper Group A/S, the ship's owner. Clipper paid $1.7 million on January 14, 2009, and the pirates disembarked the ship over the following two days.

The hijacking of the CEC Future was typical of a relatively recent phenomenon: “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.” United States v. Dire, 680 F.3d 446, 450 (4th Cir.2012), aff'g United States v. Hasan, 747 F.Supp.2d 599 (E.D.Va.2010). But piracy, of course, is nothing new. “ ‘[F]or 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, ... with devastating effect to global commerce and navigation.’ ” Id. at 454 (quoting Hasan, 747 F.Supp.2d at 602).

Yet, contemporary prosecutions of pirates present novel legal questions. ¹ The allegations of this case reveal why: Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship's Danish owners to pay a ransom for its release. Ali boarded the CEC Future two days after it was taken by the pirates. An English-speaker, he communicated the pirates' demands to Clipper representatives during the remaining sixty-nine days while the vessel was held and departed the ship after the ransom was received. Ali was arrested by United States authorities more than two years later when, en route from Somalia to attend an educational conference in Raleigh, North Carolina, he landed at Dulles International Airport.²

The indictment alleges conspiracy to commit piracy under 18 U.S.C. §§ 1651, 371 (Count One); piracy and aiding and abetting under 18 U.S.C. §§ 1651, 2 (Count Two); conspiracy to commit hostage taking under 18 U.S.C. § 1203 (Count Three); ³ and hostage taking and aiding and abetting under 18 U.S.C. §§ 1203, 2 (Count Four). ( See Second Superseding Indictment, May 8, 2012 [Dkt. No. 172] (“Ind.”).) Before the Court is Ali's motion to dismiss (May 29, 2012 [Dkt. No. 188] (“Def. Mot.”)), the government's opposition (June 11, 2012 [ Dkt. No. 201] (“Gov't Opp'n”)), and Ali's reply (June 14, 2012 [Dkt. No. 209] (“Def. Reply”)). Appealing to principles of both international and domestic law, Ali argues that all counts of the indictment are legally defective. For the reasons stated below, the Court will grant in part and deny in part Ali's motion.

ANALYSIS

Ali moves to dismiss the indictment on the grounds that it fails “to state an offense.” Fed.R.Crim.P. 12(b)(3)(B).⁴ In ruling on Ali's motion, the Court “views the indictment as a whole and assumes its factual allegations to be true.” United States v. Campbell, 798 F.Supp.2d 293, 298 (D.D.C.2011). The Court's review is limited to “ ‘the face of the indictment and, more specifically, the language used to charge the crimes.’ ” United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.2009) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006)). This “is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury.” United States v. Hitt, 249 F.3d 1010, 1016 (D.C.Cir.2001).

The Court will address Ali's arguments with regard to international law and the extraterritorial application of U.S. penal statutes in Section I. It will then turn to Ali's constitutional arguments in Section II.

I. THE EXTRATERRITORIAL APPLICATION OF DOMESTIC CRIMINAL LAWSA. The Presumption Against Extraterritoriality

Although the indictment charges Ali with violations of U.S. law, none of the charged conduct has direct ties to the United States. Neither the alleged perpetrators nor the victims were American, the ship was Bahamian, and it was sailing “on the high seas and outside the territorial waters of any country” when it was hijacked. (Ind. at 1.⁵) However, “[i]t is a ‘longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ' ” Morrison v. Nat'l Australia Bank Ltd., ––– U.S. ––––, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010) (quoting EEOC v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (“ Aramco ”) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949))). “When a statute gives no clear indication of an extraterritorial application, it has none.” Id. at 2878.

To be clear, the presumption against extraterritoriality “represents a canon of construction ... rather than a limit upon Congress's power to legislate.” Id. at 2877. Courts have “repeatedly upheld [Congress's] power to make laws applicable to persons or activities beyond our territorial boundaries,” at least “where United States interests are affected.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813–14, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993) (Scalia, J., dissenting in part) (citing Ford v. United States, 273 U.S. 593, 621–23, 47 S.Ct. 531, 71 L.Ed. 793 (1927); United States v. Bowman, 260 U.S. 94, 98–99, 43 S.Ct. 39, 67 L.Ed. 149 (1922); American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826 (1909)).⁶ Such decisions speak to Congress's “ ‘legislative jurisdiction,’ ” id. at 813, 113 S.Ct. 2891 (quoting Aramco, 499 U.S. at 253, 111 S.Ct. 1227), or “ ‘jurisdiction to prescribe.’ ” Id. (quoting Restatement (Third) of Foreign Relations Law of the United States § 401(a) (1987) (“Restatement (Third)”)). The presumption against extraterritoriality relates not to the existence of Congress's jurisdiction to prescribe, but rather to “whether, and to what extent, Congress has exercised ” it in a given enactment. Id. (emphasis altered).

Congress's exercise of its prescriptive jurisdiction in the statutes establishing the substantive offenses of piracy and hostage taking is clear. The piracy statute provides, in its entirety, 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 (emphasis added). Similarly, the hostage taking statute applies to conduct regardless of whether it occurs “inside or outside the United States.” Id.§ 1203(a).⁷ By their text, both § 1651 and § 1203 apply extraterritorially.

In addition, courts have concluded that the presumption against extraterritoriality does not apply to the federal statutes establishing aiding and abetting and conspiratorial liability where the statute setting forth the underlying substantive offense applies outside U.S. borders. See United States v. Yakou, 428 F.3d 241, 252 (D.C.Cir.2005) (“absent an indication from Congress to the contrary, the crime of aiding and abetting” in 18 U.S.C. § 2 “ ‘confers extraterritorial jurisdiction to the same extent as the offense that underlies it’ ” (alterations omitted) (quoting United States v. Hill, 279 F.3d 731, 739 (9th Cir.2002))); United States v. Yousef, 327 F.3d 56, 87–88 (2d Cir.2003) (“[I]f Congress intended United States courts to have jurisdiction over the substantive crime ... it is reasonable to conclude that Congress also intended to vest in United States courts the requisite jurisdiction over an extraterritorial conspiracy to commit that crime” pursuant to 18 U.S.C. § 371. (collecting cases)).

The Court concludes that “the presumption against extraterritoriality has been overcome or is otherwise inapplicable” with regard to all of the statutes at issue here. Hartford Fire Ins. Co., 509 U.S. at 814, 113 S.Ct. 2891 (Scalia, J., dissenting in part).

B. The Charming Betsy Canon

Therefore, however,

a second canon of statutory construction becomes relevant: “[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) (Marshall, C.J.). This canon is “wholly independent” of the presumption against extraterritoriality. Aramco, 499 U.S. at 264, 111 S.Ct. 1227. It is relevant to determining the substantive reach of a statute because “the law of nations,” or customary international law, includes limitations on a nation's exercise of its jurisdiction to prescribe. See Restatement (Third) §§ 401–416. Though it clearly has constitutional authority to do so, Congress is generally presumed not to have exceeded those customary international-law limits on jurisdiction to prescribe.

Id. at 814–15 (alterations in the original) (citation formats altered).

Accordingly, after determining that a penal statute has extraterritorial effect, courts begin the Charming Betsy analysis by considering whether the statute's extraterritorial application in a given instance would violate international law. See, e.g., United States v. Weingarten, 632 F.3d 60, 67 (2d Cir.2011); United States v. Felix–Gutierrez, 940 F.2d 1200, 1205 (9th Cir.1991). This is not because “international law [is] a self-executing code that trumps domestic law whenever the two conflict.” United States...