United States v. Abukar Beyle , 782 F.3d 159 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4895
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABUKAR OSMAN BEYLE,
Defendant - Appellant.
No. 13-4897
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANI NURANI SHIEKH ABRAR,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:11-cr-00034-RBS-DEM-2; 2:11-cr-00034-RBS-
DEM-3)
Argued: January 29, 2015 Decided: April 3, 2015
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Shedd joined.
ARGUED: James Ellenson, LAW OFFICE OF JAMES STEPHEN ELLENSON,
Newport News, Virginia; Lawrence Hunter Woodward, Jr.,
SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia
Beach, Virginia, for Appellants. Benjamin L. Hatch, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON
BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, Joseph E. DePadilla, Assistant United States Attorney,
Norfolk, Virginia, Brian J. Samuels, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee.
2
WILKINSON, Circuit Judge:
Appellants Abukar Osman Beyle and Shani Nurani Shiekh Abrar
were each convicted on twenty-six criminal counts arising from
the armed abduction and murder of four U.S. citizens off the
coast of Somalia. Beyle and Abrar were part of a group of
nineteen pirates who seized a yacht and captured the four
Americans on board. The pirates headed for Somalia, but were
intercepted by the United States Navy. During a final
confrontation with the Navy, Beyle, Abrar, and another pirate
shot and killed the four American hostages. The Navy secured the
boat and apprehended the surviving pirates, who were transported
to the United States to face criminal charges. After a weeks-
long trial, a jury convicted Beyle and Abrar on all counts, and
each defendant received multiple life sentences.
Beyle and Abrar now challenge their respective convictions
on separate grounds. Beyle argues that the district court lacked
jurisdiction over the murder and firearms charges against him
because the Americans were not killed on the “high seas.” Abrar,
who maintains that he was kidnapped before the piracy operation,
contends that he was unable to present certain witnesses who
could have corroborated his duress defense. We conclude,
however, that the site of the murders, thirty to forty nautical
miles from the Somali coast, lay on the high seas and thus
beyond the territorial sea of any nation. We further conclude
3
that Abrar was not denied his Fifth Amendment right to due
process or his Sixth Amendment right to present witnesses
material to his defense. The district court gave each of the
defendants the fair trial that he deserved, and we affirm in all
respects its judgment.
I.
In reviewing defendants’ convictions by a jury, we consider
the evidence in the light most favorable to the government.
Evans v. United States, 504 U.S. 255, 257 (1992); see United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc).
A.
The United States and its allies are engaged in a
multinational battle against piracy in the waters off the Horn
of Africa. Through the Gulf of Aden and much of the Indian
Ocean, Somalia-based pirates have launched attacks against
commercial and recreational vessels, from large freighters to
personal yachts. See The White House, United States Counter
Piracy and Maritime Security Action Plan annex A at 1 (June
2014); U.N. S.C. Rep. of the Sec’y-Gen. on the Situation with
Respect to Piracy and Armed Robbery at Sea off the Coast of
Somalia, U.N. Doc. S/2014/740 (Oct. 16, 2014). Piracy poses a
threat not only to the free flow of global commerce, but also to
4
the individuals who navigate the seas. In 2011, armed Somali
pirates attacked an estimated 3,863 seafarers and took some 555
individuals hostage. Oceans Beyond Piracy et al., The Human Cost
of Maritime Piracy, 2012, at 3 (2013). Thirty-five of those
hostages were killed. Id. at 7.
This case arises from one such attack. In early February
2011, a group of pirates, with the assistance of several
investors and facilitators in Somalia, prepared to hijack a ship
at sea. The investors provided a primary “mothership” for the
voyage, as well as an attack skiff that the pirates would use to
launch fast-moving assaults on their targets. The mothership,
the Alqasim, was a captured Yemeni fishing boat, and four Yemeni
fishermen on board were forced to operate the boat for the
pirates. All of the pirates were Somali, except for one, another
Yemeni fisherman who had been captured by Somali pirates but
then decided to join their ranks. Among their supplies, the
nineteen men brought various automatic firearms and a rocket-
propelled grenade launcher.
Beyle and Abrar were part of this cohort. Beyle assisted
with acquiring an outboard motor for the attack skiff. Abrar
brought an AK-47 aboard the boat. One of the pirates drew up a
list of the individuals who had participated in the mission, to
allocate any eventual ransom shares. Both Beyle and Abrar were
5
on the list. The four captive Yemeni fishermen from the Alqasim
were not.
The pirates set to sea on February 9, 2011. During their
first nine days, they made a number of unsuccessful efforts,
including chasing a large container ship. In at least one such
attempt, Abrar carried the rocket-propelled grenade launcher.
On February 18, 2011, the pirates spotted a new target: a
U.S.-flagged sailboat with four U.S. citizens aboard. The
Americans had been sailing in the Arabian Sea as part of an
international yacht rally, traveling a leg from India to Oman.
Two of them, Scott Adam and Jean Adam, were husband and wife and
owned this vessel, known as the Quest. The other two Americans
were Phyllis Macay and Robert Riggle, who were friends of the
couple.
Six of the pirates, including Beyle and Abrar, boarded the
attack skiff. They moved swiftly to hijack the Quest and take
the four Americans hostage. As the skiff approached, Beyle fired
an AK-47 into the air. Once on board, Abrar first subdued the
two women, and he then cut the boat’s communication lines. At
the time the pirates gained control, the nearest land was Oman
or Yemen, approximately four hundred miles away. The pirates had
traveled 940 to 960 miles from the Somali coast.
With the Quest secured, the remaining pirates took the
supplies from the mothership and crowded onto the fifty-eight-
6
foot-long Quest. They released the four Yemeni captives, who
departed in the Alqasim. The nineteen pirates then set a course
for Somalia. They intended to hold the Americans hostage on land
and work through their coconspirators to secure a ransom. 1 The
Americans were kept primarily in a horseshoe-shaped bench area
around the helm. Beyle and Abrar were among the men assigned to
guard the Americans, with guns ready. After hijacking the Quest,
the pirates also used the Americans’ cellular telephones to take
photographs and record videos. Several pirates put on clothing
belonging to their victims, and Abrar can be seen wearing a
hostage’s sunglasses and smiling.
The U.S. Navy was soon alerted to the attack, and a carrier
strike group moved to intercept the Quest. After locating the
boat, which was still hundreds of miles into the Indian Ocean,
the Navy established radio communications with the pirates and
began following the Quest as it proceeded to Somalia. The Navy’s
objective was to stop the Quest from entering Somali territorial
waters and to secure the hostages’ safe release. Claiming they
lacked any negotiating authority, however, the pirates demanded
that they be allowed to reach Somalia and engage in hostage
negotiations through an interlocutor on land. The Navy made
1
The pirates’ English-speaking negotiator in Somalia was
later captured and convicted in a separate proceeding. We
affirmed those convictions. United States v. Shibin, 722 F.3d
233 (4th Cir. 2013).
7
clear to the pirates that they would not be permitted to take
the hostages to Somalia. But time was running short: the pirates
were on pace to reach Somalia within days. At one point during
these exchanges, Abrar fired an AK-47 into the air above Scott
Adam, as a warning to the Navy. The pirates variously threatened
to kill the hostages and themselves.
On February 22, 2011, the Navy directed the pirates to stop
proceeding toward Somalia. The Navy was determined to keep the
Quest in international waters and prevent it from entering
Somali territorial waters. But the pirates refused. The Navy
began maneuvering to block the boat and informed the pirates
that these movements were peaceful. One pirate answered, “I will
eat them like meat.” J.A. 384.
Suddenly, another pirate fired a rocket-propelled grenade
toward the USS Sterett, the Navy destroyer that had been
following the Quest most closely. The rocket missed and splashed
into the water, between the Sterett and a set of smaller boats
carrying Navy SEALs. Bullets from the Quest began whizzing over
the Sterett, but the Navy did not return fire. At that point, a
group of three pirates -- Beyle and Abrar, together with Ahmed
Muse Salad, also known as “Afmagalo” -- fired their automatic
weapons and killed the four Americans. Scott Adam was shot seven
times; Jean Adam was shot seven times; Phyllis Macay was shot
eight times; Robert Riggle was shot nineteen times. At the time
8
of these events, it is undisputed the Quest was between thirty
and forty nautical miles off the coast of Somalia.
Within a matter of minutes, a team of Navy SEALs headed for
the Quest, boarded it, and secured it. By the time the SEALs
arrived, all four Americans had been mortally wounded. Many
pirates, including Beyle and Abrar, put their hands up and
surrendered. The other shooter, Afmagalo, was the last to
surrender. At the end of the encounter, four of the pirates were
dead: two from the discharge of the pirates’ own weapons, and
two from the SEALs’ raid.
The Navy took the remaining pirates into custody. While
held aboard the USS Enterprise, an aircraft carrier, they were
given Miranda warnings and questioned by the FBI. (One pirate, a
juvenile, was released.) Abrar told the FBI that he had been
forced to participate in the piracy mission. In Abrar’s account,
he was offered work as a mechanic in the coastal Somali town of
Garacad, but was then kidnapped at gunpoint by two of the other
pirates, Mohamud Salad Ali, also known as “Juguuf,” and Mohamud
Hirs Issa Ali, also known as “Sarindaaq.” Abrar acknowledged
that he had been the first pirate to board the Quest, and he
contended that after the hijacking his role changed from
mechanic to guard. According to Abrar, he did not leave with the
four Yemeni fishermen who were released on the Alqasim because
he thought he would have been arrested in Yemen for piracy.
9
Although Abrar admitted that he had been pointing a gun at
Jean Adam before the concluding moments of carnage, he denied
ever shooting any of the American hostages. Abrar, who is
considered a member of the Bantu minority ethnic group in
Somalia, claimed that he would not have received a share of any
ransom. When confronted with the pirates’ list of participants,
Abrar suggested that his name may have been included simply to
assuage his feelings.
B.
The fourteen remaining pirates, including Beyle and Abrar,
were transported to the United States for criminal prosecution.
A federal grand jury returned a three-count indictment against
the pirates. Nine members of the group pleaded guilty to piracy
under the law of nations, and two leaders, Sarindaaq and Juguuf,
pleaded guilty both to piracy under the law of nations and to
hostage-taking resulting in death. Each of the eleven pirates
who entered guilty pleas was sentenced to at least one term of
life imprisonment.
On July 8, 2011, the grand jury returned a superseding
indictment containing twenty-six counts against each of the
three pirates who had not pleaded guilty -- Afmagalo, Beyle, and
Abrar. The superseding indictment charged the codefendants with
the following crimes: conspiracy to commit hostage-taking
10
resulting in death, in violation of 18 U.S.C. § 1203(a) (Count
1); hostage-taking resulting in death, in violation of 18 U.S.C.
§ 1203(a) and § 2 (Counts 2, 3, 4, and 5); conspiracy to commit
kidnapping, in violation of 18 U.S.C. § 1201(c) (Count 6);
kidnapping resulting in death, in violation of 18 U.S.C.
§ 1201(a)(2) and § 2 (Counts 7, 8, 9, and 10); conspiracy to
commit violence against maritime navigation resulting in death,
in violation of 18 U.S.C. § 2280(a)(1)(H) (Count 11); violence
against maritime navigation resulting in death, in violation of
18 U.S.C. § 2280(a)(1)(G) and § 2 (Counts 12, 13, 14, and 15);
murder within the special maritime and territorial jurisdiction
of the United States, in violation of 18 U.S.C. § 1111 and § 2
(Counts 16, 17, 18, and 19); piracy under the law of nations, in
violation of 18 U.S.C. § 1651 and § 2 (Count 20); the use,
carry, brandish, and discharge of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c) and § 2 (Counts 21
and 26); the use, carry, brandish, and discharge of a firearm
during a crime of violence resulting in death, in violation of
18 U.S.C. § 924(c) and (j) and § 2 (Counts 22, 23, 24, and 25).
The superseding indictment also included the requisite notice of
special findings for seeking capital punishment, and nine months
later the government filed notices of its intent to seek the
death penalty against Afmagalo, Beyle, and Abrar.
11
Beyle and Abrar each filed pre-trial motions to dismiss.
First, Beyle moved to dismiss Counts 16 through 19 and Counts 22
through 25 on the ground that the murders had taken place in
Somali territorial waters, beyond U.S. jurisdiction. The
district court denied the motion in a memorandum order. Second,
Abrar moved to dismiss the indictment based on his inability to
investigate or corroborate a duress defense. Abrar identified
various witnesses located overseas -- several individuals in
Somalia, as well as the four Yemeni fishermen from the Alqasim --
who he believed could provide meaningful character evidence to
support his claim that he had been forced to join the piracy
operation. The district court denied this motion as well.
The guilt phase of the codefendants’ capital trial, which
lasted from June 4 to July 8, 2013, featured extensive testimony
from U.S. officials and from many of the pirates. The court
issued a jury instruction on Abrar’s duress defense for Counts 1
through 15 and Count 20 -- that is, for all the counts besides
the murders and the various firearms offenses.
At the conclusion of the guilt phase of the trial, the jury
convicted Afmagalo, Beyle, and Abrar on all twenty-six counts.
The jury recommended sentences of life imprisonment. The
district court eventually sentenced each of the codefendants to
three concurrent life sentences, plus eighteen consecutive life
sentences and thirty consecutive years.
12
Beyle and Abrar now appeal. Each argues his claim
independently, and neither purports to join the other’s grounds.
The third convicted codefendant, Afmagalo, is not a party to
this appeal.
II.
Beyle contends that the district court lacked jurisdiction
over the charges of murder (Counts 16, 17, 18, and 19) and
concomitant use of a firearm (Counts 22, 23, 24, and 25) because
the underlying actions occurred within Somalia’s territorial
waters, not on the high seas. For many reasons, we find Beyle’s
claims unpersuasive.
A.
The Constitution grants Congress the power “[t]o define and
punish Piracies and Felonies committed on the high Seas.” U.S.
Const. art. I, § 8, cl. 10. Congress has exercised this
enumerated power to punish maritime crimes since the earliest
days of the Republic. United States v. Dire, 680 F.3d 446, 455-
56 (4th Cir. 2012) (discussing criminal piracy statutes from
1790 and 1819 and associated litigation).
The statutes under which Beyle was convicted fall well
within Congress’s constitutionally granted power to punish
felonies on the high seas. The first statute proscribes murder
13
“[w]ithin the special maritime and territorial jurisdiction of
the United States.” 18 U.S.C. § 1111(b). The second statute
defines the “special maritime and territorial jurisdiction of
the United States” as including the “high seas, any other waters
within the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular State,” and
“[a]ny place outside the jurisdiction of any nation with respect
to an offense by or against a national of the United States.”
Id. § 7(1), (7). Finally, the statutory prohibition of the use
of a firearm to cause the death of another tacks onto the
underlying offense. Id. § 924(c), (j). Congress undoubtedly
possesses the authority under the Define and Punish Clause to
enact the criminal laws at issue in Beyle’s appeal.
That said, the crux of Beyle’s argument is not that the
statutes under which he was convicted are facially
unconstitutional, but rather that he was not on the high seas
when he committed the actions for which he is to be punished. He
asserts that the district court “mistakenly construed the law
regarding the limits of the territorial seas” of Somalia.
Appellants’ Br. at 6. Beyle’s appeal thus presents a single
issue: is a person thirty to forty nautical miles off the Somali
coast on the “high seas”? We review this question of law de
novo. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.
2005).
14
B.
It is well-settled that the “high seas” encompass all those
waters beyond the boundary of the various territorial waters.
Simply put, “[o]utside the territorial sea are the high seas.”
United States v. Louisiana, 394 U.S. 11, 23 (1969); see also
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1667
(2013) (“Piracy typically occurs on the high seas, beyond the
territorial jurisdiction of the United States or any other
country.”); United States v. Rodgers, 150 U.S. 249, 259 (1893)
(“[A] large body of navigable water[,] . . . open and
unconfined, and not under the exclusive control of any one
nation or people, . . . must fall under the definition of ‘high
seas’” . . . .). As we have noted, “beyond the territorial
waters lie the high seas, over which no nation can exercise
sovereignty.” R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 965
(4th Cir. 1999).
Customary international law supports this definition. Two
international agreements are most relevant to the case at hand.
First, the 1958 Geneva Convention on the High Seas, which the
United States has ratified, defines “high seas” as “all parts of
the sea that are not included in the territorial sea or in the
internal waters of a State.” Convention on the High Seas art. 1,
opened for signature Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S.
82 (entered into force Sept. 30, 1962). Second, the United
15
Nations Convention on the Law of the Sea (“UNCLOS”) states that
a nation’s sovereignty covers only “the territorial sea.” U.N.
Convention on the Law of the Sea art. 2, opened for signature
Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16,
1994). Although the United States has not signed or ratified
UNCLOS, it “has recognized that [the treaty’s] baseline
provisions reflect customary international law.” United States
v. Alaska, 503 U.S. 569, 588 n.10 (1992) (internal quotation
marks omitted); Dire, 680 F.3d at 459; Statement on United
States Oceans Policy, 1983 Pub. Papers 378, 379 (Mar. 10, 1983)
(“[T]he United States is prepared to accept and act in
accordance with the balance of interests relating to traditional
use of the oceans . . . .”).
UNCLOS recognizes an exclusive economic zone (“EEZ”) beyond
a nation’s territorial sea but within two hundred nautical miles
of the coastal baseline. See UNCLOS, supra, arts. 55-59. Beyle
insists that UNCLOS treats the EEZ as a distinct quasi-
territorial entity and that the high seas do not begin until two
hundred nautical miles from land. Because the Quest was within
the EEZ when the murders occurred, he thus asserts that he was
not on the “high seas” for the purposes of U.S. law.
While it is true that the part of UNCLOS that is titled
“High Seas” concerns the waters extending beyond the borders of
the EEZ, see UNCLOS, supra, art. 86, almost all of the treaty’s
16
high-seas provisions apply with equal force inside the EEZ as
they do outside it, see id. art. 58(1)-(2). The EEZ bordering a
particular nation’s territorial sea is merely a part of the high
seas where that nation has special economic rights and
jurisdiction. UNCLOS grants coastal nations certain rights to
natural resources within the EEZ, as well as jurisdiction over
marine scientific research and protection and preservation of
the marine environment. Id. art. 56(1)(a), (b); see also
Titanic, 171 F.3d at 965 n.3 (noting that the EEZ grants
“exclusive control over [certain] economic matters . . . , but
not over navigation”).
Any allocation of economic rights, however, is a far cry
from conferring on a nation the exclusive authority endemic to
sovereignty to define and punish criminal violations. In effect,
Beyle would have us use UNCLOS’s grant of certain specific
enumerated rights as a wedge to dramatically expand Somalia’s
plenary control past the twelve-nautical-mile maximum. But Beyle
points to no court that has declared that a nation’s full
sovereign rights extend two hundred nautical miles from the
coast. We decline to credit such a sweeping interpretation.
C.
If Beyle was beyond the bounds of Somalia’s territorial
sea, therefore, he was on the high seas and within the reach of
17
the U.S. criminal statutes under which he was convicted. The
question then becomes where exactly Somalia’s territorial sea
ends and the high seas begin. The weight of authority points to
an outer territorial limit of twelve nautical miles, which
places the Quest on the high seas at the time of the murders.
UNCLOS explicitly restricts territorial seas from extending
farther than twelve nautical miles from national coastlines.
UNCLOS, supra, art. 3. At the time of the piracy at issue in
this case, 161 nations had ratified UNCLOS, including Somalia.
With nearly 170 signatory nations today, UNCLOS enjoys
widespread acceptance in the international community. As noted
above, although the United States is not a signatory to UNCLOS,
this country recognizes the treaty’s place as an accurate
reflection of customary international law. It is, moreover, the
policy of the United States not to respect claims that a
territorial sea extends beyond twelve nautical miles. Office of
Ocean Affairs, U.S. Dep’t of State, Pub. No. 112, Limits in the
Seas: United States Responses to Excessive Maritime Claims 7, 33
(1992); Fact Sheet, Office of the Press Sec’y, The White House,
United States Oceans Policy (Mar. 10, 1983); see 33 C.F.R.
§ 2.22(b); see also The White House, United States Counter
Piracy and Maritime Security Action Plan annex B at 2 (June
2014). Consistent with UNCLOS, the United States itself claims a
territorial sea extending up to twelve nautical miles. 18 U.S.C.
18
§ 2280(e); Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 441 n.8 (1989); 33 C.F.R. § 2.22(a)(1)(ii), (iii),
(iv) (applying a U.S. territorial sea of twelve nautical miles
for determining U.S. criminal jurisdiction and the special
maritime and territorial jurisdiction, and for interpreting
international law); Proclamation No. 5928, 54 Fed. Reg. 777
(Dec. 27, 1988) (extending the U.S. territorial sea to twelve
nautical miles “in accordance with international law”).
We, too, have repeatedly stated that a nation’s territorial
waters generally extend to twelve nautical miles. See United
States v. Shibin, 722 F.3d 233, 239 (4th Cir. 2013); Dire, 680
F.3d at 460 n.11; Titanic, 171 F.3d at 965. The jury
instructions given by the district court reflected this
understanding, and earlier cases were predicated upon the same
definition. J.A. 2704 (“The ‘high seas’ include areas of the
seas that are outside the territorial seas of any nation. A
nation’s territorial seas are generally limited to an area
within 12 nautical miles of the nation’s coast.”); see, e.g.,
Excerpt of Proceedings (Jury Instructions) at 19-20, United
States v. Hasan, No. 2:10-cr-56 (E.D. Va. Nov. 22, 2010) (same),
ECF No. 356, aff’d sub nom. Dire, 680 F.3d 446.
Nevertheless, Beyle argues that customary international law
does not apply to the determination of the extent of Somalia’s
territorial sea, because Somalia passed national legislation in
19
1972 that extended its sea to two hundred nautical miles. 2 Even
if we could or would credit any such territorial claim, it does
not pass muster here. Somalia ratified UNCLOS in 1989, making a
clear international commitment to a territorial sea of no more
than twelve nautical miles. 3 Furthermore, Somalia also has never
submitted a declaration indicating non-adherence to any UNCLOS
provision, and in any event UNCLOS prohibits signatories from
opting out selectively from its provisions. UNCLOS, supra, art.
310. The United States, moreover, explicitly does not recognize
2
The validity of the 1972 Somali domestic legislation is
itself doubtful and unclear. In June 2014, Somalia’s president
issued a proclamation stating that the country’s exclusive
economic zone stretched for two hundred nautical miles, but made
no claim that full sovereignty extended so far. See Proclamation
by the President of the Federal Republic of Somalia (June 30,
2014), available at http://www.un.org/depts/los/LEGISLATIONANDTR
EATIES/PDFFILES/SOM_2014_Proclamation.pdf. The following month,
the country submitted an executive summary to the Commission on
the Limits of the Continental Shelf, indicating in a table that a
twelve-nautical-mile territorial claim existed, consistent with
UNCLOS. See Continental Shelf Submission of the Federal Republic
of Somalia: Executive Summary 7 (July 21, 2014), available at
http://www.un.org/depts/los/clcs_new/submissions_files/som74_14
/Somalia_Executive_Summary_2014.pdf.
3
We recognize that ratification of an international treaty
that is not self-executing typically does not supersede
inconsistent domestic law in a country that requires separate
implementing legislation. See Medellin v. Texas, 552 U.S. 491,
504-05 (2008) (discussing treaties that are not self-executing
in the context of U.S. law). Here, however, we need not decide
whether the UNCLOS provision is self-executing. Even if it is
not, the district court was justified in relying on Somalia’s
unequivocal international commitment, as embodied in its
ratification of UNCLOS, and indeed in this case Somalia’s own
treaty implementation procedures are opaque and the status of
its inconsistent domestic legislation is itself ambiguous.
20
any claim by Somalia to a two-hundred-nautical-mile territorial
sea and has conducted operations well within the two-hundred-
nautical-mile limit to make that policy known. Office of the
Judge Advocate Gen., U.S. Navy, Maritime Claims Reference
Manual: Somalia (2014). Indeed, the Navy maneuvered to block the
Quest where it did precisely because it did not want the pirated
vessel to sail into the twelve-nautical-mile territorial sea.
“The common and obvious meaning of the expression, ‘high
seas,’ is also the true legal meaning,” Daniel Webster once
argued before the Supreme Court. United States v. Bevans, 16
U.S. (3 Wheat.) 336, 341 (1818). “The expression describes the
open ocean, where the dominion of the winds and waves prevails
without check or control.” Id. Although Webster was not
conversant with UNCLOS, he plainly grasped the point that
expansive claims of territoriality would intrude upon the
natural domain of the seas and the multinational interests
therein. Nowhere is this truer than when litigants seek to
extend customary international law as memorialized in treaties
to claim territorial seas more than sixteen times the maximum
breadth. The Quest, Beyle, and the victims were on the high seas
when the murders occurred.
21
D.
We are aware of no court that has held that Somalia’s
territorial sea extends past the twelve-nautical-mile boundary
prescribed by UNCLOS, much less to two hundred nautical miles.
We shall not be the first.
Piracy is an international problem. The primary anti-piracy
statute in our criminal code, 18 U.S.C. § 1651, “incorporates”
the “definition of piracy” under international law. Dire, 680
F.3d at 469. An essential element of the international crime of
piracy is that the violence against persons, vessels, or
property occurred “on the high seas” or “outside the
jurisdiction of any” nation. UNCLOS, supra, art. 101(a)(i)-(ii);
see Shibin, 722 F.3d at 240-44; Dire, 680 F.3d at 465. In a
reflection of that shared understanding, it has fallen to U.S.
and North Atlantic Treaty Organization (“NATO”) coalition forces
to combat Somalia-based piracy. These naval forces conduct
patrols in the Gulf of Aden, a vital shipping passageway between
the Arabian Peninsula and the Horn of Africa. Parts of the Gulf
of Aden off the Somali coast are under two hundred nautical
miles wide. In essence, Beyle asks this court to treat the Gulf
of Aden as a Somali territorial sea. As a practical matter, such
a ruling would prove especially problematic for NATO maritime
forces, which only operate in Somali territorial waters under
22
the consent of Somali authorities. Fact Sheet, Mar. Command, N.
Atl. Treaty Org., Operation Ocean Shield, at 2 (Nov. 2014).
The risks of an extension of the Somali territorial sea
include as well emboldened gangs of pirates, increased
“investment” in piracy by Somalia-based financiers, and bridled
NATO and multinational counter-piracy efforts. Such results
would offend the United Nations Security Council’s ongoing
apprehension over the threat “to international navigation, the
safety of commercial maritime routes and the safety of seafarers
and other persons” posed by the violence of piracy and hostage-
taking. S.C. Res. 1976, preambular ¶ 2, U.N. Doc. S/RES/1976
(Apr. 11, 2011). We decline to allow Beyle’s challenge to his
murder and firearm convictions to undermine this broader
multinational effort.
In short, the structure of domestic and international law
that Beyle seeks to topple protects commercial peace against
piratical disruption, and we reject his challenge to his murder
and firearms convictions.
III.
Abrar argues that he was denied his Fifth Amendment right
to due process and his Sixth Amendment right to present
witnesses material to his duress defense. In particular, he
maintains that he was unable to access or subpoena certain
23
witnesses located abroad who could have corroborated his story
that he had been kidnapped and forced to work as a pirate. Even
though he concedes that duress is not a valid defense to the
murder counts, he requests dismissal of the entire indictment as
the “only remedy.” Appellants’ Br. at 30. We disagree with
Abrar’s contentions. The district court properly denied his
motion to dismiss the indictment.
A.
The Fifth Amendment guarantees that “[n]o person shall
. . . be deprived of life, liberty, or property, without due
process of law.” U.S. Const. amend. V. The right to due process
“is, in essence, the right to a fair opportunity to defend
against the [government’s] accusations.” Chambers v.
Mississippi, 410 U.S. 284, 294 (1973). The Sixth Amendment
provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have compulsory process for
obtaining witnesses in his favor.” U.S. Const. amend. VI. This
right is violated when the defendant is “arbitrarily deprived of
‘testimony [that] would have been relevant and material, and
. . . vital to the defense.’” United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982) (alterations in original)
(quoting Washington v. Texas, 388 U.S. 14, 16 (1967)). Fifth
Amendment due process and Sixth Amendment compulsory process are
24
closely related, for the right “to call witnesses in one’s own
behalf ha[s] long been recognized as essential to due process.”
Chambers, 410 U.S. at 294; see also Washington, 388 U.S. at 19.
At root, then, we are asked to determine whether one of the
“elements of a fair trial” was absent in the proceedings below.
Chambers, 410 U.S. at 295.
A criminal defendant’s right to compulsory process is not
unlimited. “Few rights,” to be sure, “are more fundamental than
that of an accused to present witnesses in his own defense,” Id.
at 302, and the right to compulsory process is “imperative to
the function of courts” in our adversary system, United States
v. Nixon, 418 U.S. 683, 709 (1974). But the right to compulsory
process does not scorn practicality. Crucially, “the Sixth
Amendment does not by its terms grant to a criminal defendant
the right to secure the attendance and testimony of any and all
witnesses.” Valenzuela-Bernal, 458 U.S. at 867 (emphasis added).
In concrete terms, the right to compulsory process is
“circumscribed . . . by the ability of the district court to
obtain the presence of a witness through service of process.”
United States v. Moussaoui, 382 F.3d 453, 463 (4th Cir. 2004).
Those practical limits are significant for the
transnational context in which Abrar’s claims arise. It is
a “well[-]established and undisputed principle that the process
power of the district court does not extend to foreign nationals
25
abroad.” Id. at 463-64. A conviction does not become
unconstitutional simply because the federal courts lack power to
secure the appearance of a foreign national located outside the
United States. Id.; United States v. Theresius Filippi, 918 F.2d
244, 246 n.2 (1st Cir. 1990); United States v. Zabaneh, 837 F.2d
1249, 1259-60 (5th Cir. 1988); United States v. Greco, 298 F.2d
247, 251 (2d Cir. 1962); see also 28 U.S.C. § 1783(a) (providing
for subpoenas of “a national or resident of the United States
who is in a foreign country,” but not referencing foreign
nationals abroad); Fed. R. Crim. P. 17(e)(2). After all, “the
Sixth Amendment can give the right to compulsory process only
where it is within the power of the federal government to
provide it.” Greco, 298 F.2d at 251.
All of the witnesses proffered by Abrar are foreign
nationals located abroad. In his pretrial motion, Abrar named
five individuals in Somalia, including a former landlord, his
brother-in-law, and others who he believed could testify about
his prior work as a driver or mechanic. He also wished to call
the four Yemeni fishermen from the Alqasim, although he did not
know their full names or their precise whereabouts. When Abrar
renewed his motion at trial, his counsel identified two
prospective witnesses for his duress defense, a shopkeeper and a
garage manager in the Somali town of Garacad. All of those
individuals are foreign nationals located outside the United
26
States, and as such they lay beyond the subpoena power of the
district court.
Abrar’s inability to access the proffered witnesses arose
primarily from the security situation in Somalia -- a matter
beyond the control of the U.S. government. See Security and
Governance in Somalia: Consolidating Gains, Confronting
Challenges, and Charting the Path Forward: Hearing Before the
Subcomm. on Afr. Affairs of the S. Comm. on Foreign Relations,
113th Cong. (2013); U.N. S.C. Rep. of the Sec’y-Gen. on Somalia,
U.N. Doc. S/2014/699 (Sept. 25, 2014). The investigators who had
traveled to Somalia on Abrar’s behalf had been unable to leave
the capital city of Mogadishu because of ongoing security
threats. The domestic troubles within Somalia may complicate
independent investigations or a potential service of process,
but such exogenous difficulties need not halt the operations of
the criminal justice system in the United States. This is
especially the case where the immediate obstacles are not of the
government’s making.
Significantly, we do not even know whether the witnesses
proffered by Abrar actually exist. During their visit to
Mogadishu, Abrar’s investigators apparently did contact some of
Abrar’s family members, but failed to obtain the cooperation of
any witnesses. They did not even speak with the shopkeeper or
the garage manager -- the two witnesses identified at trial by
27
Abrar’s counsel as “key” to his duress defense. J.A. 2364. Even
if the district court were to direct individuals to travel
through the dangerous conditions in Somalia to try to serve
subpoenas on Abrar’s proffered witnesses, it is uncertain how
long such an effort would take or whether it would be fruitful.
This is especially the case where the witnesses may be
fictitious.
We owe substantial deference to the district court for
these kinds of evidentiary determinations, and we review such
decisions for abuse of discretion. United States v. Medford, 661
F.3d 746, 751 (4th Cir. 2011). After all, the district court has
a bird’s-eye view of the trial, knowledge of the intricacies of
the case, and a sense of the context and background in which
each evidentiary claim arises.
B.
Abrar cannot establish a constitutional violation from the
“mere absence” of his proffered witnesses’ testimony.
Valenzuela-Bernal, 458 U.S. at 867. It is further doubtful that
“their testimony would have been both material and favorable to
his defense.” Id. (emphasis added). The anticipated testimony of
Abrar’s proffered witnesses was relatively far afield: it would
have consisted primarily of broad references to his activities
before the events at issue in this case. According to Abrar’s
28
own submission, the testimony would have pertained to his “trade
as a mechanic and driver, his character for peacefulness, and
the series of events leading up to his detainment by the other
pirates.” J.A. 121. Conceivably, the testimony may also have
covered the discrimination Abrar confronted as a Bantu, although
several of the pirates called by the government and other
witnesses called by the defense did discuss that issue at trial.
Critically, however, the proffered testimony would not directly
substantiate Abrar’s story that he was kidnapped at gunpoint by
Juguuf and Sarindaaq, nor would it concern the events aboard the
Quest or his relationship with the other pirates.
It is unclear -- indeed doubtful -- that such oblique
testimony would be material to Abrar’s duress defense. The
testimony adduced at trial painted a deeply incriminating
portrait of Abrar. Several of the other pirates testified that
Abrar was a willing participant. Like all the other Somalia-
based pirates who had boarded the Alqasim, including the one of
Yemeni origin -- and unlike the four captive Yemeni fishermen
who were released after the hijacking of the Quest -- Abrar
would have received a share of any ransom. Abrar brought an AK-
47 to the operation and, during at least one of the initial
unsuccessful attacks, carried the rocket-propelled grenade
launcher. He was the first pirate to board the Quest, and he
promptly took control of the two American women and cut the
29
boat’s communications lines. He stood guard over the hostages
and had his gun trained on Jean Adam before the fatal shots were
fired. From its viewing of the video evidence, the district
court told Abrar at sentencing that, “if one were concluding,
you were probably the shooter of Jean Adam.” J.A. 3596. In that
light, it is hard to imagine how testimony about Abrar’s prior
professional work could have been material to the determination
of his guilt or punishment.
Despite the powerful evidence marshaled against him at
trial, Abrar did not try to take advantage of the other sources
available to him. The government represents that, in other
piracy prosecutions in the Eastern District of Virginia, it has
worked with defense counsel to develop various evidentiary
accommodations for defendants, which might include testimony by
telephone, depositions, and stipulations. Appellee’s Br. at 52-
53. Notably, Abrar also did not elicit testimony about his
abduction from his two alleged kidnappers. Juguuf and Sarindaaq
were in federal custody with the other pirates who had already
pleaded guilty, and the government offered to make either of
them available to testify on this point. But Abrar’s counsel
declined the offer. He informed the court that he had spoken
with Juguuf and Sarindaaq and knew that both would deny Abrar’s
story. While Abrar was certainly free to structure his defense
as he thought best, his failure to adduce any direct evidence of
30
his story or to counter effectively the overwhelming case
against him undermines whatever vague advantage he sought to
gain from elusive overseas witnesses.
C.
In the proceedings below, the district court gave Abrar
multiple opportunities to develop his duress argument. Of
course, as a criminal defendant, Abrar was entitled not to take
the stand. U.S. Const. amend. V. Had he chosen to testify,
however, Abrar generally would have been subject to the same
evidentiary rules as other witnesses. Portuondo v. Agard, 529
U.S. 61, 69 (2000). In particular, the government would have
been allowed to attack his credibility on cross-examination.
Fed. R. Evid. 608(a), 611(b). The district court, though, was
prepared to make an exception: if Abrar took the stand and his
counsel asked only about the facts surrounding his duress
defense, the district court would limit the government’s cross-
examination of Abrar to that issue. But Abrar elected not to
testify even in that controlled capacity. In addition, the court
ultimately instructed the jury on Abrar’s duress defense for
most of the counts, despite the absence of significant
evidentiary support. Although the government objected to this
instruction below, it bears note that, even with a duress
31
instruction, the jury proceeded to convict Abrar on all twenty-
six counts charged in the indictment.
Despite the opportunities afforded to Abrar, the weight of
the evidence against him was simply overwhelming -- and
virtually uncontroverted. The district court ably presided over
a twenty-eight-day jury trial spanning nearly two months and
“watched every video and heard every piece of evidence.” J.A.
3597. In the final analysis, the court’s view of the matter was
clear:
Four people were murdered, and they were murdered in a
particularly heinous manner. The whole process of the
conspiracy and the kidnapping was horrendous. . . .
Frankly, you looked like you were having a good time
at certain instances. I would challenge anyone to sit
and look at all of these videos and any of these
pictures and come to any conclusion other than you
were a willing participant . . . . [N]one of the
evidence, when you put it together, meets common sense
of you being under duress. . . . You were a major
player and you were a major shooter, and there is no
question in my mind.
J.A. 3595-97. From all the evidence adduced at trial and the
inferences that might have been drawn from it, the court
concluded, Abrar’s claim of duress “defie[d] . . . credibility.”
J.A. 3597. We see no reason to disturb the jury’s and the
court’s assessments, much less to invoke the extraordinary
remedy of dismissing the indictment. We thus affirm the district
court’s denial of Abrar’s motion.
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IV.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED
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