United States v. Said

3 F.Supp.3d 515

UNITED STATES of America

v.Mohamed Ali SAID, a/k/a Maxamad Cali Saciid, Mohamed Abdi Jama, a/k/a Mohammed Abdi Jamah, Abdicasiis Cabaase, a/k/a Ahmed Mahomood, Abdi Razaq Abshir Osman, a/k/a Abdirasaq Abshir, and Mohamed Farah, a/k/a Mahamed Farraah Hassan, Defendants.

Criminal Action No. 2:10cr57.

United States District Court,

E.D. Virginia,

Norfolk Division.

Signed Feb. 28, 2014.

Unconstitutional as Applied

18 U.S.C.A. § 1651

Joseph E. Depadilla, Benjamin Lucas Hatch, United States Attorney's Office, Norfolk, VA, Jerome Teresinski, U.S. Department of Justice, Washington, DC, Raymond E. Patricco, Jr., United States Attorney's Office, Alexandria, VA, for Plaintiff.

Keith Loren Kimball, Richard Joseph Colgan, Office of the Federal Public Defender, Robert Bryan Rigney, Protogyrou & Rigney PLC, Christian Lee Connell, Bruce Christopher Sams, Sams & Gilchrist PLLC, Trey Robert Kelleter, Vandeventer Black LLP, Norfolk, VA, David Michael Good, David Michael Good PC, Virginia Beach, VA, for Defendants.

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before this Court is Defendants Mohamed Ali Said, Mohamed Abdi Jama, Abdicasiis Cabaase, Abdi Razaq Abshir Osman, and Mohamed Farah's Joint Motion for Ruling Regarding Inapplicability of Statutory Mandatory Minimum Punishment for Piracy Offenses. Dkt. No. 245. For the reasons stated below, Defendants' Motion is GRANTED. The parties are DIRECTED to submit supplemental memoranda addressing the sentence to be imposed for the piracy charge within TWENTY–ONE (21) DAYS of the date of entry of this Order.

I. PROCEDURAL AND FACTUAL HISTORY

The Second Superseding Indictment provides a concise description of the relevant underlying facts in this case. Dkt. No. 140. Defendants' names have been shortened to only their last names for brevity.

1. In and around the early to middle part of February 2010, the exact date being unknown, defendants Said, Jama, Cabaase, along with Jama Idle Ibrahim and others, went to sea in a boat with the intent to hijack a ship and hold the ship and its crew for ransom. Their boat carried weapons and tools to be used in the hijacking.

2. On or about February 26, 2010, [they] again went to sea with the intent to hijack a ship and hold the ship and its crew for ransom. Their boat carried weapons and tools to be used in the hijacking, including but not limited to one or more AK–47 firearms, a handgun, and a hooked ladder for boarding another vessel.

3. On or about February 27, 2010, [they] were transiting the Gulf of Aden in their boat. They were intercepted by the HMS Chatham (F–87), a frigate of the Royal Navy, which deployed its helicopter and smaller boats to interdict [them]. Before they were stopped and boarded by sailors from the HMS Chatham, the conspirators threw several weapons and their hooked ladder overboard. When they were stopped and questioned, the conspirators made false statements about their activities, that is, one or more of the conspirators claimed to be human smugglers.

4. On or about April 9, 2010, the defendants, Said, Jama, Cabaase, Osman, and Farah, along with Ibrahim and another individual, again went to sea, specifically, the Gulf of Aden, with the intent to hijack a ship and hold the ship and its crew for ransom. The conspirators carried, among other things, firearms and a hooked ladder for boarding another vessel.

5. On or about April 10, 2010, shortly before sunrise, [they] approached a vessel they had been following. One of the conspirators raised an AK–47 and began firing. The vessel under attack was in fact the USS Ashland, of the United States Navy.

6. On or about April 10, 2010, after their boat had been hit by return fire from the USS Ashland, [they] agreed to make false statements and to tell the Navy and government that they were human smugglers who had become stranded at sea.

Second Superseding Indictment at 2–4. As this Court has previously noted, “[a]t no time did Defendants board or attempt to board the USS Ashland.” United States v. Said, 757 F.Supp.2d 554, 557 (E.D.Va.2010).

One of the pirates, un-named in the Second Superseding Indictment, was killed after the Ashland responded to their attack. The others were apprehended and eventually transported to this District, and on April 21, 2010, Defendants and co-defendant Jama Ibrahim were named in a five-count Indictment. On July 7, 2010, they were named in an eight-count Superseding Indictment. On August 17, 2010, the Court dismissed Count One of the Superseding Indictment, which charged the defendants with piracy under 18 U.S.C. § 1651, reasoning that their conduct did not fall within “the crime of piracy as defined by the law of nations.” Said, 757 F.Supp.2d 554. On August 27, 2010, Ibrahim pleaded guilty to three counts of the Superseding Indictment: attack to plunder a vessel, act of violence against persons on a vessel, and use of a firearm during a crime of violence. On November 29, 2010, the Court sentenced Ibrahim to 360 months of imprisonment and the Government dismissed the remaining counts of the Superseding Indictment. In the meantime, the Government filed an interlocutory appeal of the Court's August 17, 2010 Order.

On May 23, 2012, the United States Court of Appeals for the Fourth Circuit issued an opinion vacating the Court's dismissal of the piracy count. United States v. Said, 680 F.3d 374 (4th Cir.2012). See also United States v. Dire, 680 F.3d 446, 465 (4th Cir.2012) (upholding an instruction to the jury that the crime of piracy includes “any of the three following actions: (A) any illegal acts of violence or detention or any act of depredation committed for private ends on the high seas or a place outside the jurisdiction of any state by the crew or the passengers of a private ship and directed against another ship or against persons or property on board such ship; or (B) any act of voluntary participation in the operation of a ship with knowledge of facts making it a pirate ship; or (C) any act of inciting or of intentionally facilitating an act described in (A) or (B) above”).

The Government then filed the ten-count Second Superseding Indictment on August 8, 2012. Defendants Said, Jama, and Cabaase were named in all ten counts. Defendants Osman and Farah were named in nine of the ten counts (all excluding Count Nine, which related solely to the February 2010 incident involving the British vessel described above). The ten counts and the applicable penalties are as follows:

• Count 1: Conspiracy to Commit Hostage Taking, 18 U.S.C. § 1203(a) (any term of years or life imprisonment)

• Count 2: Conspiracy to Commit Kidnapping, 18 U.S.C. § 1201(c) (any term of years or life imprisonment)

• Count 3: Conspiracy to Perform Act of Violence Against Persons on a Vessel, 18 U.S.C. § 2291(a)(9) (0–20 years of imprisonment)

• Count 4: Conspiracy Involving Firearm and a Crime of Violence, 18 U.S.C. § 924( o ) (any term of years or life imprisonment)

• Count 5: Piracy Under the Law of Nations, 18 U.S.C. §§ 1651 & 2 (mandatory life)

• Count 6: Attack to Plunder Vessel, 18 U.S.C. §§ 1659 & 2 (0–10 years of imprisonment)

• Count 7: Assault with a Dangerous Weapon on Federal Officers and Employees, 18 U.S.C. §§ 111(a)(1), 111(b) & 2 (0–20 years of imprisonment)

• Count 8: Act of Violence Against Persons on a Vessel, 18 U.S.C. §§ 2291(a)(6) & 2 (0–20 years of imprisonment)

• Count 9: Use/Possession of a Firearm During a Crime of Violence, 18 U.S.C. §§ 924(c)(1)(A) & 2 (5 years to life to run consecutively)

• Count 10: Use/Possession of a Firearm During a Crime of Violence, 18 U.S.C. §§ 924(c)(1)(A) & 2 (25 years to life to run consecutively)

At the end of a six-day jury trial, on February 27, 2012, Defendants were convicted of all counts of which they were charged. As to Count 10, the jury also found that a firearm had been discharged. Dkt. Nos. 204, 206, 208, 210, & 212.

Prior to the Defendants' scheduled sentencing hearings, on October 4, 2013 they submitted a joint motion contending that the Court should “enter an order finding that it is not limited to imposing a mandatory life sentence for the offense of piracy under 18 U.S.C. § 1651.” Dkt. No. 245, at 1. They argue that a life sentence on the piracy count would be grossly disproportionate and therefore violate the Eighth Amendment of the United States Constitution. The Government filed a Response in Opposition on October 11, 2013, Dkt. No. 257, and Defendants filed a Reply on October 15, 2013, Dkt. No. 258. On October 16, 2013, the day of the first scheduled sentencing hearings, the Court continued all of the sentencings pending its consideration of Defendants' motion.

II. DISCUSSION

1. Applicable Legal Framework

The Eighth Amendment of the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Defendants' challenge concerns the final clause, which proscribes cruel and unusual punishments and is concerned not only with excessively barbaric or inhumane treatment, but also with proportionality. “The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). Eighth Amendment challenges to the proportionality of a sentence are typically either categorical or based on the circumstances of an individual case. The Supreme Court has most recently decided cases involving categorical challenges to a sentencing scheme: for example, whether a sentence of mandatory life without parole for those under the age of 18 at the time of their homicide crimes is cruel and unusual punishment. Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407...