United States v. Shibin

722 F.3d 233

UNITED STATES of America, Plaintiff–Appellee,

v.Mohammad Saaili SHIBIN, a/k/a Khalif Ahmed Shibin, a/k/a Mohammad Ali, a/k/a Ali Jama, Defendant–Appellant.

No. 12–4652.

United States Court of Appeals, Fourth Circuit.

Argued: May 14, 2013.

Decided: July 12, 2013.

ARGUED:James Orlando Broccoletti, Zoby & Broccoletti, P.C., Norfolk, Virginia, for Appellant. Benjamin L. Hatch, Office Of The United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia; Joseph E. DePadilla, Brian J. Samuels, Assistant United States Attorneys, Office Of The United States Attorney, Norfolk, Virginia, for Appellee.

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MOTZ and Judge FLOYD joined.

NIEMEYER, Circuit Judge:

On May 8, 2010, Somali pirates seized the German merchant ship the Marida Marguerite on the high seas, took hostages, pillaged the ship, looted and tortured its crew, and extorted a $5–million ransom from its owners. Mohammad Saaili Shibin, while not among the pirates who attacked the ship, boarded it after it was taken into Somali waters and conducted the negotiations for the ransom and participated in the torture of the merchant ship's crew as part of the process.

On February 18, 2011, Somali pirates seized the American sailing ship the Quest on the high seas. A U.S. Navy ship communicated with the pirates on board in an effort to negotiate the rescue of the ship and its crew of four Americans, but the pirates referred the Navy personnel to Shibin as their negotiator. When the Navy ship thereafter sought to bar the pirates from taking the Quest into Somali waters, the pirates killed the four Americans.

Shibin was later located and arrested in Somalia and turned over to the FBI, which flew him to Virginia to stand trial for his participation in the two piracies. A jury convicted him on 15 counts, and he was sentenced to multiple terms of life imprisonment.

On appeal, Shibin contends that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction over those charges; (2) to dismiss all counts for lack of personal jurisdiction because Shibin was forcibly seized in Somalia and involuntarily removed to the United States; (3) to dismiss the non-piracy counts involving the Marida Marguerite because “universal jurisdiction” did not extend to justify the U.S. government's prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin's testimony about prior statements made to him by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

We conclude that the district court did not err in refusing to dismiss the various counts of the indictment and did not abuse its discretion in admitting Agent Coughlin's testimony. Accordingly, we affirm.

IThe Piracy of the Marida Marguerite

As the Marida Marguerite was making way in the Indian Ocean on a trip from India to Antwerp and preparing to join a protected convoy to transit the Gulf of Aden, she was attacked by Somali pirates in a small, high-speed boat. The Marida Marguerite was manned by a crew of 22 from Bangladesh, India, and Ukraine, and was carrying a shipment of benzene and castor oil. As the Marida Marguerite attempted evasive maneuvers, the pirates fired two rocket-propelled grenades at the ship, prompting the ship's captain to surrender. After taking control of the ship in international waters, the pirates, armed with AK–47s, forced the crew to head for Somali waters. While in route, they looted the ship, including the personal valuables of crew members.

The Marida Marguerite arrived first at an anchorage near Hafun on the east coast of Somalia, where “a multitude” of other hijacked ships were anchored. At that location, additional pirates boarded the ship with more weapons, including assault weapons, rocket-propelled grenades, and two large stationary machine guns. The ship was then moved to an anchorage off Garaad, a town controlled by pirates, where Shibin boarded the ship. It was ultimately moved to Hobyo, on the southeast coast of Somalia. Shibin remained on board for over 7 months (except for a vacation of 10 to 12 days during the summer) until the ransom was received.

During the period that the ship was held captive, Shibin, who had a high position among the pirates, served principally as the negotiator, using tactics that included the psychological and physical torture of the crew. Ultimately, Shibin was able to extort a $5–million ransom from the ship's owners, and the money was air-dropped at the ship. After the money was confirmed, the pirates released the ship to a waiting U.S. frigate, which escorted it to safety. Shibin was among the last of the pirates to disembark.

For a period during the seizure of the Marida Marguerite and its crew, Shibin was deposed as the negotiator, and an “investor” took over. For that period, Shibin was demoted to the role of a “regular” or “normal” pirate and carried an AK–47 as he stood guard over the hostages. After a short period of time, however, Shibin was reappointed as the negotiator, and he completed the deal for the $5–million ransom in December 2010.

The Piracy of the Quest

Several months later, on February 18, 2011, as a U.S. sailing vessel, the Quest, was making way from India to Oman as part of an international yacht rally, a group of Somali pirates hijacked the ship. The ship was manned by four Americans—its owners Scott and Jean Adams, and their friends Phyllis Macay and Robert Riggle. The pirates, carrying automatic weapons and a rocket-propelled grenade launcher, boarded the Quest in the Arabian Sea, roughly 400 miles from Oman and 900 miles from Somalia. The pirates planned to take the ship back to Somalia, where their colleague Shibin would negotiate a ransom.

The U.S. Navy learned of the Quest's seizure, and several Navy ships began shadowing it. After Navy personnel were able to establish bridge-to-bridge radio communications with the pirates, the pirates told the Navy that they lacked the authority to negotiate and that their job was to capture vessels and hostages and return them to Somalia where their English-speaking negotiator would arrange a ransom. As the pirates and the Quest continued towards Somali territorial waters, the Navy asked the pirates for the name and contact information of their negotiator. The pirates told the Navy that the person to contact was Shibin, and they provided the Navy with Shibin's cell phone number. The Navy did not, however, then attempt to call him, for strategic reasons.

By the morning of February 22, 2011, as the Quest was nearing Somali waters, Navy personnel advised the pirates that they had to stop. When the pirates did not comply, the Navy attempted to position one of its ships to block the pirates, prompting the pirates to fire a rocket-propelled grenade at the Navy. As the Navy continued to close in, but before it reached the Quest, the pirates shot and killed all four Americans on board.

Shibin's Capture

Following the attack on the Quest, FBI agents worked to collect evidence of Shibin's involvement in the Quest piracy. During the investigation, they learned from German law enforcement authorities about Shibin's possible involvement in the hijacking of the Marida Marguerite. They also learned from a pirate and from piracy investors that Shibin had planned to invest his share of the Marida Marguerite ransom in the Quest piracy. Such an investment would entitle him to a return as a portion of the eventual ransom.

On April 4, 2011, “Host Nation Defense Forces” in Somalia, acting in cooperation with the FBI, arrested Shibin in the northern city of Bosasso, in the Puntland region of Somalia. Earlier, they had recovered his cell phone and had turned it over temporarily to the FBI. Within a few hours of Shibin's arrest, two FBI agents arrived in Bosasso to question Shibin while he was still in the Defense Forces' custody. They questioned Shibin three times over the course of three days. Shibin stated that he had used a cell phone with a SIM number matching the phone number that the pirates had given the Navy, but he claimed to have lost the phone several weeks before in a taxi in Zambia. Shibin told the agents that he had operated as the negotiator at one time during the Marida Marguerite piracy, for which he had received $30,000. He denied any involvement in the hijacking of the Quest, but admitted to conducting internet searches on his phone regarding the Quest and its crew simply as a matter of curiosity. He pointed out that he had an “auto-alert” feature on his phone that sent him messages about hijackings in and around Somali waters.

With Shibin's permission, the FBI agents searched his luggage, obtaining bank records and other items relevant to the piracies. The bank records showed that Shibin had deposited $37,000 on January 6, 2011, shortly after the payment of the Marida Marguerite ransom, and that he had withdrawn $19,952 between January 10 and March 1, 2011.

The cell phone, which Host Nation Defense Forces temporarily turned over to the FBI for its investigation, had the same SIM number that had been provided to the Navy by the pirates on the Quest. Shibin's “contacts” list contained entries for several of the investors in the Quest piracy. The cell phone revealed that during the time when the Quest was in the pirates' custody, one of the Quest investors had texted Shibin, asking him to call. Shibin's cell phone was also in frequent contact with various other investors, using both cell phone calls and text messages. On the day that the pirates seized the Quest, Shibin received a text message stating, “Sarindaaq captured Americans.” Sarindaaq was the leader of the pirates who had physically seized the Quest...