United States v. Mohammad Shibin , 722 F.3d 233 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4652
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.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:11-cr-00033-RGD-DEM-1)
Argued: May 14, 2013 Decided: July 12, 2013
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Motz and Judge Floyd joined.
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.
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
2
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.
I
The 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
3
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.
4
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
5
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
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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.
7
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. The cell phone
indicated that over the next several days, from February 19 to
21, Shibin conducted internet searches on topics like “Hijacked
S/V Quest value,” “Jean and Scott Adams profile,” “address of
hijacked S/V Quest owner,” and “Jean and Scott Adams telephone
number.”
8
On April 6, 2011, the Host Nation Defense Forces
transferred custody of Shibin to the Bosasso Police Department,
and the Bosasso Police in turn transferred custody of Shibin to
the FBI. The FBI placed Shibin under arrest for charges related
to the Quest piracy and transported him to the Oceana Naval Air
Station in Virginia Beach, Virginia.
Prosecution
Shibin was initially charged in a three-count indictment
for his alleged role in the piracy of the Quest. A later
superseding indictment, returned on August 17, 2011, added
charges relating to the piracy of the Marida Marguerite, as well
as additional charges relating to the piracy of the Quest.
Counts 1 through 6, arising from the piracy of the Marida
Marguerite, charged the following crimes:
1. Piracy under the law of nations, in violation of
18 U.S.C. §§ 1651 and 2;
2. Conspiracy to commit hostage taking, in violation
of 18 U.S.C. § 1203(a);
3. Hostage taking, in violation of 18 U.S.C. §§
1203(a) and 2;
4. Conspiracy to commit violence against maritime
navigation, in violation of 18 U.S.C. §
2280(a)(1)(H);
5. Violence against maritime navigation, in
violation of 18 U.S.C. §§ 2280(a)(1)(A) and 2;
and
6. Use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2.
9
Counts 7 through 15, arising from the piracy of the Quest,
charged the following crimes:
7. Piracy under the law of nations, in violation of
18 U.S.C. §§ 1651 and 2;
8. Conspiracy to commit hostage taking, in violation
of 18 U.S.C. § 1203(a);
9. Hostage taking, in violation of 18 U.S.C. §§
1203(a) and 2;
10. Conspiracy to commit kidnapping, in violation of
18 U.S.C. § 1201(c);
11. Kidnapping, in violation of 18 U.S.C. §§
1201(a)(2) and 2;
12. Conspiracy to commit violence against maritime
navigation, in violation of 18 U.S.C. §
2280(a)(1)(H);
13. Violence against maritime navigation, in
violation of 18 U.S.C. §§ 2280(a)(1)(A) and 2;
14. Use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2; and
15. Use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2.
Shibin filed multiple pretrial motions, including a motion
to dismiss the piracy charges in Counts 1 and 7, because the
government did not allege that Shibin himself acted on the high
seas, and a motion to dismiss all charges for lack of
jurisdiction. The district court deferred ruling on the motion
to dismiss the piracy charges until hearing evidence at trial
and denied the other motions. Shibin renewed all motions to
10
dismiss at the close of the government’s case and again prior to
sentencing, all of which the court denied.
During the course of the trial, which lasted ten days,
Shibin called one witness, pirate and family member Mohamud
Salad Ali, who was one of the leaders of the Quest piracy.
While Salad Ali testified that he never personally asked for or
formed an agreement with Shibin to be the negotiator for the
Quest, he acknowledged, on cross examination, that the Quest
investors could have selected Shibin as the negotiator without
his knowledge. Salad Ali denied having told the FBI during
earlier interviews that he had spoken with Shibin before going
to sea and had told Shibin that he would call when he had
“prey,” meaning a captured vessel; that he had told Shibin that
he was going to sea to hijack a ship and that Shibin had replied
that he was ready to be their translator; and that he had told
Shibin that Shibin would be the negotiator.
In rebuttal, the government called FBI Agent Kevin
Coughlin, who had participated in the earlier interviews with
Salad Ali and had recorded what he had said. Agent Coughlin
testified, over Shibin’s objection, that Salad Ali had in fact
made the statements he denied. Shibin objected because Coughlin
reported what an interpreter said, not Salad Ali, and the
interpreter was not present to be cross examined. Agent
Coughlin explained that he used an FBI Somali linguist to
11
translate both his questions and Salad Ali’s answers and that
Salad Ali did not appear to have any trouble understanding the
questions.
The jury convicted Shibin on all counts, and the district
court sentenced him to 12 terms of life imprisonment, two of
which were to be served consecutively; a consecutive 120-month
term of imprisonment; and several concurrent 240-month terms.
This appeal followed.
II
Shibin contends first that he did not “commit the crime of
piracy,” as charged in Counts 1 and 7, because, “according to
statutory text, legislative history, and international law, [he]
could only be convicted of aiding and abetting piracy if the
government proved that he was on the high seas, and while on the
high seas, facilitated piratical acts.”
The government observes that there is no dispute that the
piracies in this case occurred on the high seas beyond the
territorial waters of Somalia, which are generally defined as
the waters within 12 nautical miles of the coast. It contends
that Shibin is liable as a principal in those piracies, even
though he did not personally venture into international waters,
because he “intentionally facilitated” and thereby aided and
abetted the piracies. The government argues that liability for
12
aiding and abetting piracy is not limited to conduct on the high
seas, explaining:
That no such limitation is imposed is sensible. Once
members of a joint criminal enterprise trigger the
universal jurisdiction that applies to piracy on the
high seas, both international and domestic law
prudently include in the scope of the crime all those
persons that worked together to commit it, including
those leaders like Shibin who facilitate the crime and
without which the crime itself would not be possible.
In Counts 1 and 7, Shibin was charged with committing and
aiding and abetting the crime of piracy, in violation of 18
U.S.C. §§ 1651 and 2. Section 1651 provides:
Whoever, 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. And § 2 provides:
Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.
18 U.S.C. § 2(a).
The district court’s jurisdiction over these crimes arises
from “universal jurisdiction.” Universal jurisdiction is an
international law doctrine that recognizes a “narrow and unique
exception” to the general requirement that nations have a
jurisdictional nexus before punishing extraterritorial conduct
committed by non-nationals. United States v. Hasan, 747 F.
Supp. 2d 599, 608 (E.D. Va. 2010), aff’d sub nom. United States
v. Dire, 680 F.3d 446 (4th Cir. 2012). It allows any nation
13
“jurisdiction to define and prescribe punishment for certain
offenses recognized by the community of nations as a universal
concern.” Restatement (Third) of Foreign Relations Law § 404
(1987). Universal jurisdiction requires “not only substantive
agreement as to certain universally condemned behavior but also
procedural agreement that universal jurisdiction exists to
prosecute a subset of that behavior.” Sosa v. Alvarez-Machain,
542 U.S. 692, 762 (2004) (Breyer, J., concurring in part and
concurring in the judgment). The parties agree that piracy is
subject to universal jurisdiction, as pirates are considered
hostis humani generis, the enemies of all humankind. See
Harmony v. United States, 43 U.S. (2 How.) 210, 232 (1844).
The issue presented by this appeal is whether Shibin, whose
conduct took place in Somalia and in Somalia’s territorial
waters, may be prosecuted as an aider and abettor of the
piracies of the Marida Marguerite and the Quest, which took
place on the high seas. Shibin agrees that if his conduct had
indeed taken place on the high seas, he could have been found
guilty of aiding and abetting piracy. But in this case he
participated in the piracies by conduct which took place only in
Somalia and on the Marida Marguerite while it was located in
Somali territorial waters. The issue thus reduces to a question
of whether the conduct of aiding and abetting § 1651 piracy must
itself take place on the high seas.
14
Section 1651 punishes piracy as that crime is defined by
the law of nations at the time of the piracy. See Dire, 680
F.3d at 469 (noting that Ҥ 1651 incorporates a definition of
piracy that changes with advancements in the law of nations”).
In Dire, we held that Article 101 of the United Nations
Convention on the Law of the Sea (“UNCLOS”) accurately
articulates the modern international law definition of piracy.
Id. at 459, 469. *
Article 101 of UNCLOS provides:
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any
act of depredation, committed for private ends by
the crew or the passengers of a private ship or a
private aircraft, and directed:
(i) on the high seas, against another ship or
aircraft, or against persons or property on
board such ship or aircraft;
(ii) against a ship, aircraft, persons or
property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the
operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or
aircraft;
*
Although over 160 nations are parties to UNCLOS, making up
an “overwhelming majority of the world,” the United States has
not signed or ratified the Convention because “of its
disagreement with the deep seabed regime setout in Part XI of
the Convention.” Hasan, 747 F. Supp. 2d at 619 (citing 1 Thomas
J. Schoenbaum, Admiralty and Maritime Law § 2–2 (4th ed. 2004)).
15
(c) any act of inciting or of intentionally
facilitating an act described in subparagraph (a)
or (b).
UNCLOS art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397, 436 (emphasis
added). Thus, as relevant here, Article 101(a) defines piracy
to include specified acts “directed on the high seas against
another ship . . . or against persons or property on board such
ship,” and Article 101(c) defines piracy to include any act that
“intentionally facilitat[es]” any act described in Article
101(a). The parties agree that the facilitating conduct of
Article 101(c) is “functionally equivalent” to aiding and
abetting criminal conduct, as proscribed in 18 U.S.C. § 2.
While Shibin’s conduct unquestionably amounted to acts that
intentionally facilitated Article 101(a) piracies on the high
seas, he claims that in order for his facilitating conduct to
amount to piracy, his conduct must also have been carried out on
the high seas. The text, however, hardly provides support for
this argument. To the contrary, the better reading suggests
that Articles 101(a) and 101(c) address distinct acts that are
defined in their respective sections.
Article 101(a), which covers piracies on the high seas,
explicitly requires that the specified acts be directed at ships
on the high seas. But Article 101(c), which defines different
piratical acts, independent of the acts described in Article
101(a), is linked to Article 101(a) only to the extent that the
16
acts must facilitate Article 101(a) acts. Article 101(c) does
not limit the facilitating acts to conduct on the high seas.
Moreover, there is no conceptual reason why acts facilitating
high-seas acts must themselves be carried out on the high seas.
The text of Article 101 describes one class of acts involving
violence, detention, and depredation of ships on the high seas
and another class of acts that facilitate those acts. In this
way, Article 101 reaches all the piratical conduct, wherever
carried out, so long as the acts specified in Article 101(a) are
carried out on the high seas.
We thus hold that conduct violating Article 101(c) does not
have to be carried out on the high seas, but it must incite or
intentionally facilitate acts committed against ships, persons,
and property on the high seas. See also United States v. Ali,
__ F.3d __, No. 12-3056, slip op. at 12, 20 (D.C. Cir. June 11,
2013) (similarly interpreting Article 101(c) in the course of
holding that the liability of an aider and abettor of a § 1651
piracy “is not contingent on his having facilitated these acts
while in international waters himself”).
Citing UNCLOS Article 86, Shibin argues that we should read
a “high-seas” requirement into the definition of the
facilitating acts described in Article 101(c). Article 86
provides: “The provisions of this Part [Part VII, “High Seas,”
which includes Article 101] apply to all parts of the sea that
17
are not included in the exclusive economic zone, in the
territorial sea or in the internal waters of a State, or in the
archipelagic waters of an archipelagic State.” UNCLOS art. 86,
1833 U.N.T.S. at 432.
Our reading of Article 101, however, is not inconsistent
with Article 86, as Article 101(a) does indeed identify
piratical acts as acts against ships on the high seas. The
subordinated acts of Article 101(c) are also acts of piracy
because they facilitate Article 101(a) acts. Moreover, Article
86 serves only as a general introduction, providing context to
the provisions that follow. It does not purport to limit the
more specific structure and texts contained in Article 101. See
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,
2070 (2012) (“[I]t is a commonplace of statutory construction
that the specific governs the general” (alteration in original)
(quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374,
384 (1992))).
Additionally, Shibin’s argument is inconsistent with the
interpretation of Article 101 given by various international
authorities, including the United Nations Security Council. Cf.
Dire, 680 F.3d at 469 (looking to a United Nations Security
Council resolution to discern that UNCLOS represents “the
definition of piracy under the law of nations”). In 2011, the
Security Council adopted Resolution 1976, which reaffirmed that
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“international law, as reflected in . . . [UNCLOS], in
particular its articles 100, 101 and 105, sets out the legal
framework applicable to combating piracy and armed robbery at
sea.” S.C. Res. 1976, preambular ¶ 8, U.N. Doc. S/RES/1976
(Apr. 11, 2011). Importantly, the Resolution stressed “the need
to investigate and prosecute those who illicitly finance, plan,
organize, or unlawfully profit from pirate attacks off the coast
of Somalia, recognizing that individuals and entities who incite
or intentionally facilitate an act of piracy are themselves
engaging in piracy as defined under international law.” Id. ¶
15 (emphasis added). Clearly, those who “finance, plan,
organize, or unlawfully profit” from piracy do not do so on the
high seas.
Similarly, Security Counsel Resolution 2020, adopted in
2011, recognizes “the need to investigate and prosecute not only
suspects captured at sea, but also anyone who incites or
intentionally facilitates piracy operations, including key
figures of criminal networks involved in piracy who illicitly
plan, organize, facilitate, or finance and profit from such
attacks.” S.C. Res. 2020, preambular ¶ 5, U.N. Doc. S/RES/2020
(Nov. 22, 2011) (emphasis added).
These sources reflect, without ambiguity, the international
viewpoint that piracy committed on the high seas is an act
against all nations and all humankind and that persons
19
committing those acts on the high seas, as well as those
supporting those acts from anywhere, may be prosecuted by any
nation under international law. See Ali, __ F.3d at __, No. 12-
3056, slip op. at 20.
Shibin makes a similar argument that he made with respect
to UNCLOS to the domestic law provisions of 18 U.S.C. §§ 1651and 2. Thus, he argues that the “on the high seas” requirement
contained in § 1651 means that even those who are charged under
§ 2 for aiding and abetting a § 1651 piracy must act on the high
seas. As he did with Article 101, Shibin seeks to import the
high seas locational component of § 1651 into § 2. We believe
that this argument fairs no better.
To violate § 1651, a principal must carry out an act of
piracy, as defined by the law of nations, on the high seas. But
Shibin was not prosecuted as a principal; he was prosecuted as
an aider and abettor under § 2. Section 2 does not include any
locational limitation, just as Article 101(c) of UNCLOS does not
contain a locational limitation. Section 2 more broadly
punishes conduct that “aids, abets, counsels, commands, induces
or procures” commission of “an offense against the United
States,” including conduct punished in § 1651. 18 U.S.C. §
2(a). And nothing in § 1651 suggests that an aider and abettor
must satisfy its locational requirement.
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It is common in aiding-and-abetting cases for the
facilitator to be geographically away from the scene of the
crime. For example, to be convicted of aiding and abetting a
bank robbery, one need not be inside the bank. See United
States v. Ellis, 121 F.3d 908, 924 (4th Cir. 1997) (“[O]ne's
physical location at the time of the robbery does not preclude
the propriety of an aiding and abetting charge”); United States
v. McCaskill, 676 F.2d 995, 1000 (4th Cir. 1982) (concluding
that driver of the getaway car was liable as an aider-and-
abettor); Tarkington v. United States, 194 F.2d 63, 68 (4th Cir.
1952) (“It is also obvious that there is no merit in the
contention that the conviction was invalidated because [the
defendant] was not physically present at the bank when the
robbery took place”). Similarly, “[o]ne need not be present
physically at the time to be guilty as an aider and abettor in
an embezzlement.” United States v. Ray, 688 F.2d 250, 252 (4th
Cir. 1982).
Nonetheless, Shibin relies on United States v. Ali, 885 F.
Supp. 2d 17 (D.D.C. 2012), rev’d in relevant part, __ F.3d at
__, No. 12-3056, slip op. at 32, to contend that we should read
a locational limitation into § 2 based on the Supreme Court’s
interpretation of the predecessor statute. In United States v.
Palmer, 16 U.S. (3 Wheat.) 610, 633-34 (1818), the Supreme Court
concluded that the piracy provisions of the Crimes Act of 1790
21
did not reach conduct committed by foreign vessels traversing
the high seas. To reverse that ruling, Congress revised the
offense of general piracy. But in doing so, it did not alter §
10 of the Crimes Act of 1790, which is § 2’s predecessor. From
this history, Shibin argues that § 2 is therefore a municipal
statute, applying only to piracy within United States territory.
But the tie between Palmer and § 2 is not strong enough to
validate Shibin’s argument. First, the Supreme Court’s comments
in Palmer on § 2’s predecessor are dicta. See Palmer, 16 U.S.
at 629-30. But more importantly, § 2’s predecessor was tied to
the crimes proscribed by the Crimes Act of 1790 and was narrower
than today’s § 2. Thus, Palmer did not construe the modern
aiding-and-abetting liability. We are satisfied to give § 2, in
its present form, its natural reading.
Accordingly, we affirm Shibin’s piracy convictions in
Counts 1 and 7, based on his intentionally facilitating two
piracies on the high seas, even though his facilitating conduct
took place in Somalia and its territorial waters.
III
Shibin next contends that the indictment should have been
dismissed for lack of personal jurisdiction because he was
“forcibly seized and removed from [Somalia] by agents of the
United States government and was provided no opportunity to
22
challenge either his detention or his removal.” He argues that
the lack of an extradition treaty between Somalia and the United
States
should not be construed to mean one nation’s
acquiescence to another government’s exercise of power
over its citizens. The lack of a treaty with Somalia
is not permission given by the Somalia government to
the United States to enter its country and seize its
citizens for arrest, transport, and prosecution.
* * *
Because the lack of a treaty is not permission or
silent acquiescence to foreign governmental seizure of
their citizens, the United States must respect
Somalia’s decision not to enter into an extradition
treaty with us and go through official Somali channels
to obtain custody of Mr. Shibin -- if Somalia would
allow it.
Shibin was initially detained in Bosasso, Somalia, by Host
Nation Defense Forces. A few days later, these forces turned
him over to the Bosasso Police Department, and the Bosasso
Police in turn handed him over to the FBI, which took him to
Virginia, where he was “found” for U.S. jurisdictional purposes.
Under the Ker-Frisbie doctrine, the manner in which the
defendant is captured and brought to court is generally
irrelevant to the court’s personal jurisdiction over him. See
Ker v. Illinois, 119 U.S. 436, 444 (1886) (“[S]uch forcible
abduction is no sufficient reason why the party should not
answer when brought within the jurisdiction of the court which
has the right to try him for such an offense, and presents no
23
valid objection to his trial in such court”); Frisbie v.
Collins, 342 U.S. 519, 522 (1952) (“There is nothing in the
Constitution that requires a court to permit a guilty person
rightfully convicted to escape justice because he was brought to
trial against his will”); see also Kasi v. Angelone, 300 F.3d
487, 493-95 (4th Cir. 2002).
Shibin argues that the Ker-Frisbie doctrine does not apply
to him because Somalia and the United States do not have an
extradition treaty. He suggests that the absence of a treaty
should be taken as Somalia’s wish not to have persons extradited
and therefore removed involuntarily. But Shibin cites no case
law for this theory, and we could find none. Indeed, the
existence of an extradition treaty is hardly relevant to the
applicability of the doctrine, unless the terms of the treaty
explicitly foreclose it.
To be sure, there are fleeting references in the case law
to exceptions to the Ker-Frisbie doctrine. For instance, in
United States v. Alvarez-Machain, 504 U.S. 655, 662-70 (1992),
the Court analyzed whether a treaty between countries, under
which a breach would limit the jurisdiction of a court,
prohibited the defendant’s abduction. The implication there was
that if the treaty so provided, the United States would be bound
by the treaty. But the implication was not that the absence of
a treaty would limit a court’s jurisdiction.
24
More explicitly, in United States v. Anderson, 472 F.3d
662, 666 (9th Cir. 2006), the court stated that the Ker-Frisbie
doctrine does have exceptions that would deprive the court of
jurisdiction over an extradited defendant when “(1) the transfer
of the defendant violated the applicable extradition treaty, or
(2) the United States government engaged in misconduct of the
most shocking and outrageous kind to obtain his presence.”
(Internal quotation marks and citations omitted). Another court
observed, however, that the shock-the-conscience exception rests
on “shaky ground.” United States v. Best, 304 F.3d 308, 312-13
(3d Cir. 2002).
Nonetheless, neither of the exceptions suggested in
Anderson would help Shibin in this case. First, Shibin cites no
treaty between Somalia and the United States that could limit a
federal court’s jurisdiction over him. And second, Shibin has
failed to show that the government’s conduct in this case was,
in any degree, “of the most shocking and outrageous kind.”
Anderson, 472 F.3d at 666 (internal quotation marks omitted).
Factual realities also undermine Shibin’s arguments.
Although Shibin claims that he should have been allowed some
formal process in Somalia, he does not identify what this
process might have been. He has identified no extradition
treaty or extradition process, and he has pointed to no other
established legal process that might have been applicable.
25
At bottom, we conclude that Shibin’s presence in the United
States, although against his will, satisfied the personal
jurisdiction requirements of “brought into” or “found in,” as
contained in 18 U.S.C. §§ 1651, 1203, and 2280. See, e.g.,
United States v. Shi, 525 F.3d 709, 725 (9th Cir. 2008)
(concluding that “the [statutory] requirement that a defendant
be ‘later found’ does not contain the implicit requirement that
the defendant’s arrival in the United States be voluntary”);
United States v. Rezaq, 134 F.3d 1121, 1130 (D.C. Cir. 1998)
(holding that “found in” does not create a statutory exception
to the Ker-Frisbie rule); United States v. Yunis, 924 F.2d 1086,
1092 (D.C. Cir. 1991) (finding that the statutory term “found
in” “does not indicate the voluntariness limitation urged by
[the defendant]”). Accordingly, we affirm the district court’s
ruling denying Shibin’s motion to dismiss the indictment for
lack of personal jurisdiction based on his being brought into
the United States involuntarily.
IV
Shibin next contends that the non-piracy counts related to
the Marida Marguerite, Counts 2 through 6, must be dismissed
because “the universal jurisdiction doctrine did not provide the
[district] court with jurisdiction” over those counts. Counts 2
through 6 charge Shibin with the following offenses:
26
Count 2: Conspiracy to commit hostage taking, in
violation of 18 U.S.C. § 1203(a);
Count 3: Hostage taking, in violation of 18 U.S.C.
§§ 1203(a) and 2;
Count 4: Conspiracy to commit violence against
maritime navigation, in violation of 18 U.S.C.
§§ 2280(a)(1)(H);
Count 5: Violence against maritime navigation, in
violation of 18 U.S.C. §§ 2280(a)(1)(A) and 2; and
Count 6: Use of a firearm during a crime of
violence, in violation of 18 U.S.C. §§ 924(c) and 2.
Shibin argues that these crimes do not fit within the small set
of crimes that are universally cognizable and therefore subject
to prosecution under universal jurisdiction.
The government contends that universal jurisdiction was not
invoked for the prosecution of Counts 2 through 6. Rather, “the
criminal statutes [themselves] are clear in the extraterritorial
scope, and in each case Congress acted pursuant to a
constitutional grant of lawmaking power” to extend U.S.
jurisdiction over those offenses.
At the outset, we agree that Counts 2 through 6 do not
depend on universal jurisdiction. Rather, they rely on the
jurisdiction provided by the statutes themselves.
It is well-established that Congress may criminalize
extraterritorial conduct. See, e.g., United States v. Ayesh,
702 F.3d 162, 166 (4th Cir. 2012) (“‘Congress has the authority
to apply its laws, including criminal statutes, beyond the
27
territorial boundaries of the United States’” (quoting United
States v. Dawn, 129 F.3d 878, 882 (7th Cir. 1997))); EEOC v.
Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (“Both parties
concede, as they must, that Congress has the authority to
enforce its laws beyond the territorial boundaries of the United
States”), superseded by statute on other grounds, Civil Rights
Act of 1991, Pub. L. No. 102-166, § 109(a), 105 Stat. 1071,
1077.
To be sure, statutes extend extraterritorially only if
Congress clearly so provides. See Morrison v. Nat’l Australia
Bank Ltd., 130 S. Ct. 2869, 2877-78, 2883 (2010); see also
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664-65
(2013) (applying the presumption against extraterritoriality).
But when Congress provides a clear indication of
extraterritoriality, U.S. jurisdiction is not limited to
offenses criminalized under international law nor dependent on
universal jurisdiction. United States v. Yousef, 327 F.3d 56,
91 (2d Cir. 2003) (“[I]rrespective of whether customary
international law provides a basis for jurisdiction over [the
defendant] for Counts Twelve thru Nineteen, United States law
provides a separate and complete basis for jurisdiction over
each of these counts and . . . United States law is not
subordinate to customary international law or necessarily
28
subordinate to treaty-based international law and, in fact, may
conflict with both”).
In this case, the substantive statutes on which Counts 2
through 6 rest clearly manifest Congress’ intent to criminalize
conduct that takes place outside the municipal jurisdiction of
the United States. Section 1203, on which Counts 2 and 3 are
based, criminalizes hostage taking and provides:
(a) Except as provided in subsection (b) of this
section, whoever, whether inside or outside the United
States, [takes hostages], shall be punished by
imprisonment for any term of years or for life and, if
the death of any person results, shall be punished by
death or life imprisonment.
(b)(1) It is not an offense under this section if the
conduct required for the offense occurred outside the
United States unless --
(A) the offender or the person seized or detained
is a national of the United States;
(B) the offender is found in the United States;
or
(C) the governmental organization sought to be
compelled is the Government of the United States.
18 U.S.C. § 1203 (emphasis added). This statute explicitly
reaches hostage taking anywhere in the world, so long as the
offender ends up in the United States. In this case, Shibin was
involved in hostage taking on the Marida Marguerite and was
later found in Virginia, where he was prosecuted.
29
Section 2280, on which Counts 4 and 5 are based,
criminalizes maritime violence and includes language similar to
that in the hostage taking statute. It provides:
(b) Jurisdiction. -- There is jurisdiction over the
activity prohibited in subsection (a) --
(1) in the case of a covered ship, if --
(A) such activity is committed --
(i) against or on board a ship flying
the flag of the United States at the
time the prohibited activity is
committed;
(ii) in the United States; or
(iii) by a national of the United
States or by a stateless person whose
habitual residence is in the United
States;
(B) during the commission of such activity,
a national of the United States is seized,
threatened, injured or killed; or
(C) the offender is later found in the
United States after such activity is
committed;
(2) in the case of a ship navigating or scheduled
to navigate solely within the territorial sea or
internal waters of a country other than the
United States, if the offender is later found in
the United States after such activity is
committed; and
(3) in the case of any vessel, if such activity
is committed in an attempt to compel the United
States to do or abstain from doing any act.
18 U.S.C. § 2280(b) (emphasis added). The term “covered ship,”
as used in § 2280(b), is defined as “a ship that is navigating
30
or is scheduled to navigate into, through or from waters beyond
the outer limit of the territorial sea of a single country or a
lateral limit of that country’s territorial sea with an adjacent
country.” 18 U.S.C. § 2280(e). In this case, Shibin was
involved in maritime violence against the Marida Marguerite in
waters other than United States waters and was later found in
Virginia, where he was prosecuted.
Finally, § 924(c), on which Count 6 is based, criminalizes
the use or possession of a firearm in connection with a crime of
violence. It is an ancillary crime that depends on the nature
and reach of the underlying crime. Thus, its jurisdictional
reach is coextensive with the jurisdiction of the underlying
crime. As the statue provides:
[A]ny person who, during and in relation to any crime
of violence or drug trafficking crime . . . for which
the person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime . . . [be
sentenced to an additional term of imprisonment].
18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, because Shibin
could be prosecuted in the United States for hostage taking and
maritime violence, he could also be prosecuted under § 924(c)
for possessing, using, or carrying a firearm in connection with
those crimes. See United States v. Belfast, 611 F.3d 783, 814
(11th Cir. 2010) (concluding that § 924(c) applies
31
extraterritorially because “a statute ancillary to a substantive
offense statute is presumed to have extraterritorial effect if
the underlying substantive offense statute is determined to have
extraterritorial effect” (internal alterations and quotation
marks omitted)); United States v. Hasan, 747 F. Supp. 2d 642,
684 (E.D. Va. 2010) (applying § 924(c) extraterritorially),
aff’d sub nom. United States v. Dire, 680 F.3d 446 (4th Cir.
2012). Thus, as an ancillary crime to underlying crimes that
apply extraterritorially, § 924(c) applies coextensively with
the underlying crimes.
Congress’ power to enact statutes that extend
extraterritorially is derived generally from the Define and
Punish Clause, U.S. Const. art. I, § 8, cl. 10; the Treaty
Power, U.S. Const. art. II, § 2, cl. 2; and the Necessary and
Proper Clause, U.S. Const. art. I, § 8, cl. 18.
Thus, § 1203, the hostage-taking statute, is
constitutionally valid as the implementation of the
International Convention Against the Taking of Hostages,
December 17, 1979, T.I.A.S. No. 11,081. See United States v.
Ferreira, 275 F.3d 1020, 1027-28 (11th Cir. 2001) (concluding
that “Congress passed the Hostage Taking Act to implement the
International Convention Against the Taking of Hostages” and
that it was a valid exercise of congressional authority under
32
the Necessary and Proper Clause); United States v. Lue, 134 F.3d
79, 81-84 (2d Cir. 1998) (same).
Similarly, § 2280, punishing maritime violence, is
constitutionally valid as the implementation of the Convention
for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation arts. 7, 11, March 10, 1988, 1678 U.N.T.S.
221. See United States v. Shi, 525 F.3d 709, 721 (9th Cir.
2008) (“In order to satisfy this obligation [of the Maritime
Safety Convention], it was necessary for the United States to
codify the Convention's ‘extradite or prosecute’ requirement
into federal law. Section 2280 accomplishes this task”); cf.
Yousef, 327 F.3d at 95–96 (discussing a similar provision in
the Montreal Convention).
Finally, § 924(c), criminalizing gun use in connection with
any crime of violence that can be prosecuted in the United
States, is constitutionally valid under the Necessary and Proper
Clause in connection with other statutes’ implementation of
treaties. See Lue, 134 F.3d at 84 (relying on M’Culloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819), for the rule that “the
‘plainly adapted’ standard requires that the effectuating
legislation bear a rational relationship to a permissible
constitutional end”).
At bottom, we reject Shibin’s argument that the district
court did not have jurisdiction under “universal jurisdiction”
33
over the non-piracy counts related to the Marida Marguerite,
Counts 2 through 6. Universal jurisdiction was irrelevant to
the prosecution of those counts, and, we conclude, each of those
counts is based on a statute that Congress validly applied to
extraterritorial conduct, including Shibin’s conduct.
V
Finally, Shibin contends that the district court abused its
discretion in admitting into evidence the testimony of FBI Agent
Kevin Coughlin, who was called as a witness to rebut testimony
given by defense witness Mohamud Salad Ali. Agent Coughlin had
conducted pretrial interviews of Salad Ali with the assistance
of an FBI Somali linguist, who served as an interpreter. And as
the interpreter gave Salad Ali’s answers to the questions posed
by Agent Coughlin, Coughlin made notes of what Salad Ali said.
During his testimony at trial, Salad Ali denied making some
of the statements recorded in Agent Coughlin’s notes. After
Salad Ali concluded his testimony, the government called Agent
Coughlin as a rebuttal witness, and Coughlin testified that
Salad Ali did in fact make the statements he denied making.
Shibin objected to the testimony because Agent Coughlin was
repeating out-of-court statements of an absent declarant -- the
interpreter -- and therefore Coughlin’s testimony was
inadmissible hearsay. The district court, however, overruled
34
the objection. But it pointed out that Shibin could cross
examine Agent Coughlin about the use of the interpreter and how
the interview was conducted. Shibin now contends that the
district court’s ruling was an abuse of discretion.
The government argues that Agent Coughlin’s testimony was
not inadmissible hearsay of the interpreter but rather
admissible testimony of prior inconsistent statements made by
Salad Ali. See Fed. R. Evid. 801(c)(2) (defining hearsay as
evidence offered “to prove the truth the matter asserted in the
statement”); Fed. R. Evid. 613(b) (providing the procedure for
admitting extrinsic evidence of a prior inconsistent statement).
We agree with the government that the district court did
not abuse its discretion in admitting Agent Coughlin’s testimony
about Salad Ali’s statements in the interview because they were
admitted only as prior inconsistent statements. And the absence
in court of the interpreter did not render the statements
inadmissible as hearsay because the interpreter was not the
declarant, but only a “language conduit.” United States v.
Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (“[E]xcept in unusual
circumstances, an interpreter is no more than a language conduit
and therefore his translation does not create an additional
level of hearsay” (quoting United States v. Martinez–Gaytan, 213
F.3d 890, 892 (5th Cir. 2000) (internal quotation marks
omitted)). While interpreted testimony might be unusable
35
without the interpreter’s presence in a circumstance “where the
particular facts of a case cast significant doubt upon the
accuracy of a translated confession,” id., no such facts were
presented in this case. Indeed, Agent Coughlin testified
without contradiction that Salad Ali did not have any difficulty
understanding the questions.
Shibin also raises for the first time on appeal a challenge
under Crawford, arguing that the Confrontation Clause required
the presence of the interpreter. See Crawford v. Washington,
541 U.S. 36, 59 (2004). He argues that “the absence of the
interpreter at trial prevented [him] from being able to
challenge by cross-examination, the reliability of the out-of-
court statements that the government offered against him.”
Crawford, however, “does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.” United States v. Ayala, 601 F.3d 256, 272
(4th Cir. 2010) (quoting Crawford, 541 U.S. at 60 n.9). Here,
the statements were introduced as prior inconsistent statements.
The interpreter was nothing more than a language conduit. He
translated the statements of Salad Ali and Agent Coughlin, both
of whom were subject to cross examination.
Moreover, because we review Shibin’s Crawford argument for
plain error, Shibin must show that the error affected his
substantial rights. See Fed. R. Crim. P. 52(b); United States
36
v. Olano, 507 U.S. 725, 734-35 (1993). Shibin, however, has made
no mention of any substantial rights that were adversely
affected. Indeed, Agent Coughlin’s rebuttal testimony was not
even critical to Shibin’s convictions. Shibin admitted his
involvement in the ransom negotiations of the Marida Marguerite,
and his involvement in the Quest piracy was established by
coconspirator testimony, Shibin’s admissions, and the contents
of Shibin’s cell phone. In addition, Salad Ali himself
testified that the investors of the Quest piracy could have
chosen Shibin to be the negotiator without his knowledge.
In short, we reject Shibin’s challenge to the district
court’s evidentiary ruling.
* * *
For the foregoing reasons, we affirm Shibin’s judgments of
conviction.
AFFIRMED
37