United States v. Ali ( 2011 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ____________________________________
    )
    UNITED STATES OF AMERICA,           )
    )
    v.                            )               Criminal No. 11-0106 (PLF)
    )
    ALI MUHAMED ALI,                    )
    )
    Defendant.                    )
    ____________________________________)
    OPINION AND ORDER
    This matter is before the Court on Defendant Ali Muhamed Ali’s motion for bond
    review filed on June 7, 2011. The government filed an opposition to that motion, and the Court
    held a hearing on the motion on June 17, 2011. Upon consideration of the testimony presented
    by counsel for the defendant and the evidence, arguments and proffers presented by counsel for
    the defendant and counsel for the government, the Court will deny the motion.1
    I. BACKGROUND
    A four-count superseding indictment was returned by a grand jury against
    defendant Ali Muhamed Ali on April 29, 2011. The first count charges him with conspiracy to
    commit piracy under the Law of Nations, in violation of 
    18 U.S.C. § 371
    ; the second count with
    piracy under the Law of Nations and aiding and abetting and causing an act to be done, in
    1
    The papers considered in connection with this matter include: The Superseding
    Indictment (“Indictment”); the Government’s memorandum and proffer in support of pretrial
    detention (“Gov’t. Mem.”); Defendant’s motion for bond review (“Def. Mot.”); the
    Government’s memorandum in opposition to Defendant’s motion for bond review (“Opp.
    Mem.”); and the exhibits and supplemental exhibits submitted by the parties, including a number
    of letters from members of Mr. Ali’s community contained in a Notice of Supplemental Exhibits
    filed on June 23, 2011.
    violation of 
    18 U.S.C. §§ 2
     and 1651; the third count with attack to plunder a vessel and aiding
    and abetting and causing an act to be done, in violation of 
    18 U.S.C. §§ 2
     and 1659; and the
    fourth count with hostage taking and aiding and abetting and causing an act to be done, in
    violation of 
    18 U.S.C. §§ 2
     and 1203.
    The indictment alleges that Mr. Ali took part in the hijacking of the M/V CEC
    Future, a Bahamian-flagged vessel owned by the Danish company Clipper Group A/S. The CEC
    Future was captured in the Gulf of Aden outside of the territorial waters of any country on
    November 7, 2008, and the ship and its crew were held until January 16, 2009. Mr. Ali boarded
    the ship on November 9 or 10, 2008 and communicated with the owners of the CEC Future on
    numerous occasions to make ransom demands on behalf of the hijackers. Negotiations between
    Mr. Ali and Clipper Group A/S continued for several weeks until the company delivered 1.7
    million U.S. dollars as ransom on January 14, 2009. The ship and crew were released two days
    later.
    II. THE BAIL REFORM ACT
    Our system of criminal justice embraces a strong presumption against detention.
    “‘In our society, liberty is the norm, and detention prior to trial or without trial is the carefully
    limited exception.’” United States v. Gloster, 
    969 F. Supp. 92
    , 96-97 (D.D.C. 1997) (quoting
    United States v. Salerno, 
    481 U.S. 739
    , 755 (1987)). The Bail Reform Act of 1984, 
    18 U.S.C. § 3142
     et seq., sets forth the limited circumstances in which a defendant may be detained before
    trial despite the presumption in favor of liberty. See 
    18 U.S.C. § 3142
    (a). The Act allows the
    2
    Court to order pretrial detention when it finds that “no condition or combination of conditions
    will reasonably assure the appearance of the person as required and the safety of any other person
    and the community.” 
    18 U.S.C. § 3142
    (e)(1); see United States v. Simpkins, 
    826 F.2d 94
    , 96
    (D.C. Cir. 1987). The Act requires the Court to consider four factors in determining whether a
    defendant is a risk of flight or danger to the community: the nature and circumstances of the
    offense charged, “including whether the offense is a crime of violence . . . [or] a Federal crime of
    terrorism;” the weight of the evidence against the defendant; the history and characteristics of the
    defendant; and the nature and seriousness of the danger to any person or the community that
    would be posed by the defendant’s release. 
    18 U.S.C. § 3142
    (g). The government must
    demonstrate that the defendant is a flight risk under by a preponderance of the evidence, or that
    he poses a danger to the community by clear and convincing evidence. See United States v.
    Brown, 
    6 Fed. Appx. 5
    , 5-6 (D.C. Cir. 2001); United States v. Vortis, 
    785 F.2d 327
    , 328-29
    (D.C. Cir. 1986), cert. denied, 
    479 U.S. 841
     (1986).
    Subject to rebuttal by the defendant, the Bail Reform Act contains a presumption
    that a defendant cannot be released where the Court finds that there is probable cause to believe
    that he has committed an offense listed in 18 U.S.C. § 2332b(g)(5)(B) for which a maximum
    term of imprisonment of 10 years or more is prescribed. See 
    18 U.S.C. § 3142
    (e)(3)(C).
    Hostage taking under 
    18 U.S.C. § 1203
     is one such listed offense, see 18 U.S.C.
    § 2332b(g)(5)(B), and Section 1203(a) prescribes a maximum sentence of life imprisonment after
    conviction. See 
    18 U.S.C. § 1203
    (a). The indictment, “fair upon its face,” furnishes probable
    cause to believe that the defendant committed the charged act. United States v. Mosuro,
    
    648 F.Supp. 316
    , 318 (D.D.C. 1986) (quoting Gerstein v. Pugh, 
    420 U.S. 103
    , 117 n. 19 (1975));
    3
    see also United States v. Smith, 
    79 F.3d 1208
    , 1210 (D.C. Cir. 1996). Once a rebuttable
    presumption is created, it imposes a burden of production on the defendant to offer contrary
    credible evidence. See United States v. Alatishe, 
    768 F.2d 364
    , 371 (D.C. Cir. 1985). Even if
    such contrary evidence or credible proffers are offered, the presumption remains as a factor to be
    considered by the Court amongst others in determining whether the defendant should be
    detained. United States v. O’Brien, 
    895 F.2d 810
    , 815 (1st Cir. 1990); United States v. Narain,
    Civil Action No. 07-059, 
    2007 WL 1169335
    , at *1 (D.D.C. Apr. 19, 2007).2
    III. THE PARTIES’ ARGUMENTS
    A. Nature and Circumstances of the Offense
    Mr. Ali concedes that piracy and hostage taking are “stark and violent crimes,”
    but argues that he was not part of the contingent that attacked and hijacked the ship. He asserts
    that he had no prior knowledge of the plan, and points out that he performed a nonviolent and
    neutral role as negotiator. Def. Mot. at 10-11. At the hearing, Mr. Ali introduced multiple audio
    recordings between himself and the Clipper Group’s negotiator in which he asserts that he
    consistently identified himself as independent from the pirates and voiced concern that they
    would harm him. The Court finds no such consistency in these audio tapes. See infra at 8. The
    2
    At oral argument, defendant’s counsel posited that the rebuttable presumption
    functions as a “bursting bubble” that ceases to exist once a defendant produces any credible
    evidence. Although the D.C. Circuit has not expressly ruled on this issue, see United States v.
    Alatishe, 
    768 F.2d at
    371 n. 14, circuits that have considered the issue require using the
    presumption as a factor even after the defendant has produced credible evidence, see United
    States v. Portes, 
    786 F.2d 758
    , 764 (7th Cir. 1986), as do judges of this Court. See United States
    v. Bess, 
    678 F. Supp. 929
    , 934 (D.D.C. 1988) (“[The presumption] is incorporated into the
    § 3142(g) factors considered by the court when determining whether conditions of release can be
    fashioned or whether the defendant must be detained pretrial.”).
    4
    government responds that negotiations for a ransom are necessary for piracy to succeed, that
    without them there would be no point in violently capturing a ship, and that the evidence shows
    that the defendant was actively involved in negotiations on behalf of the pirates, not as a neutral
    party. Opp. Mem. at 7-8.
    Mr. Ali also contends that the seriousness of the charges actually weighs against
    his risk of flight. Because the United States has taken a strong public stance against piracy, he
    argues, even if Mr. Ali flees to Somalia he will be tracked down and returned to the United
    States. Def. Mot. at 12.
    B. Weight of the Evidence
    The government maintains that the evidence against Mr. Ali is quite substantial; it
    includes eyewitness testimony and documentary proof of Ali’s role as negotiator for the pirates
    and Ali’s own statements to the media and law enforcement admitting his role in the piracy. The
    government also points out that Mr. Ali was separately paid $75,000 by the Clipper Group. Opp.
    Mem. at 8. Mr. Ali contends that this $75,000 was voluntarily given to him by the company for
    diffusing the negotiations; he was paid nearly two weeks after hostages were released. Mr. Ali
    also provides a letter from the CEO of the Clipper Group, Per Gullestrup, thanking Mr. Ali for
    improving the conditions of the crew and stating that Mr. Ali “has at no point asked for any kind
    of compensation.” Def. Mot. at 13-14. In response to the letter, the government represents that it
    subsequently contacted Mr. Gullestrup, and he expressed approval of Mr. Ali’s arrest. Mr. Ali’s
    counsel states that he also spoke with Mr. Gullestrup, who qualified his statement to the
    5
    government, saying that he was speaking generally about the prosecution of piracy by the United
    States.
    C. History and Characteristics of the Defendant
    Mr. Ali maintains that he has significant ties to the United States and is well
    regarded both in the United States and in Somaliland. He lived in the United States for 26 years
    and has numerous friends and family members in the Washington metropolitan area, two of
    whom testified as to his good reputation amongst the Somali-American community and one of
    whom offered to have Mr. Ali live with him if released on bond. Mr. Ali returned to Somalia in
    2007 to care for his young son, for whom Mr. Ali is pursing asylum. Until shortly before his
    arrest, Mr. Ali was Somaliland’s Director General of the Ministry of Education and participated
    in programs to expand Somaliland’s primary school education programs. Def. Mot. at 3-4.
    Mr. Ali also points out that he has no prior criminal record and has a history of attending court
    proceedings. Id. at 6-7. Finally, he has submitted a number of letters of support from individuals
    in the Somali-American community attesting to Mr. Ali’s good character and integrity.
    The government argues that Mr. Ali has no property or funds in the United States;
    that he was fired from his position in Somaliland; and that he has engaged in fraudulent behavior
    as determined by the Immigration and Naturalization Service (“INS”). Mr. Ali submitted to INS
    that he was an agricultural worker in order to change his immigration status, but the affidavits in
    support of Mr. Ali’s claim were found to be fraudulent. Similarly, Mr. Ali provided a document,
    stating that he was awarded a no-fault divorce overseas, which INS determined was fraudulent.
    Opp. Mem. at 10-11. Many of Mr. Ali’s immigration documents list different birth dates and
    6
    places of birth, although Mr. Ali contends that these are clerical errors. See id. at 11-12; Def.
    Mot. at 7-8. The government also determined that Mr. Ali was in the process of purchasing fake
    degrees online when he was arrested. Opp. Mem. at 11. Finally, Mr. Ali used an alias when
    negotiating with the company for release of the hostages, although he contends he did so because
    of his fear of the pirates, not to mask his identity to the Clipper Group or to law enforcement, as
    evidenced by his willingness to discuss the event with the media and with law enforcement.
    Def. Mot. at 9-10.
    D. Danger to the Community
    In contending that he is not dangerous, Mr. Ali points to his lack of a criminal
    record or history of violence. Def. Mot. at 14. The government argues that Mr. Ali would have a
    significant incentive to flee and rejoin the pirates, as they would provide a means of protection
    and income, and would thus pose a danger to the seafaring community along the coast of Africa.
    Opp. Mem. at 13.
    IV. DISCUSSION
    The gravity of the charges Mr. Ali faces and the presumption in favor of detention
    they create weigh heavily against release. Although Mr. Ali has no criminal history in this
    country and apparently is well regarded both here and in Somaliland, his past misrepresentations
    to the INS are a concern for this Court. Furthermore, he currently resides in Somalia, and, if he
    fled, recapture would pose a particular difficulty, despite Mr. Ali’s contentions to the contrary.
    As the government points out, there exists no extradition treaty between the United States and
    Somalia, and “there is limited lawful authority in Somalia, making it unreasonable to expect the
    7
    government to be willing to assume the tremendous logistical burden of undertaking an operation
    to procure the defendant’s presence from abroad through other means.” Gov’t. Mem. at 8.
    As for the weight of the evidence, the evidence and proffers presented by the
    parties demonstrate clearly that Mr. Ali acted as negotiator between the pirates and the company
    for the payment of ransom in exchange for the hostages on board the ship. The parties differ
    drastically, however, on what the evidence signifies. Counsel for Mr. Ali says he was a neutral
    go-between who acted courageously at great personal risk. See Def. Mot. at 12-13. The
    government and the grand jury that found probable cause to indict Mr. Ali for piracy and hostage
    taking, by contrast, believe the evidence shows Mr. Ali to have been “a willing participant in a
    ransom scheme.” Opp. Mem. at 7. While both parties rely on audio tapes, the government also
    relies on eyewitness testimony and Mr. Ali’s admission to the media and law enforcement of his
    active involvement in these criminal acts. Id. at 8. The Court has viewed the excerpts from the
    audio tapes counsel for the defendant has chosen to show and has read the transcripts of those
    tapes. They hardly provide the dramatic support for Mr. Ali’s position that he suggests. In the
    Court’s view, whether he was a neutral middleman or an active conspirator remains an open
    question, one which a jury ultimately will be called upon to decide.3
    In United States v. Anderson, 
    384 F. Supp. 2d 32
    , 35 (D.D.C. 2005), this Court
    found the defendant a flight risk despite his being charged with nonviolent crimes and having no
    prior criminal history. The factors which led the Court to deny release in that case included
    Mr. Anderson’s ability to flee by use of assets abroad, connections overseas, and aliases;
    3
    As for Mr. Gullestrup’s views, see supra at 5-6, the Court can make no finding as
    to what his position is at this point in light of the conflict in the proffers presented by the parties.
    His views would not be determinative in any event.
    8
    evidence of his interest in fleeing; the length of the sentence he faced if convicted; his lack of ties
    to the District of Columbia; and his persistent lack of candor and good faith in his dealings with
    the government. Id. at 36. Here, Mr. Ali similarly lacks current ties to the Washington
    metropolitan region and to the United States. Mr. Ali has significant contacts overseas, as he
    resides in Somalia, where his young son remains. And, according to the government, his
    overseas contacts include pirate organizations, which would be of immense assistance in
    enabling Mr. Ali to escape the reach of the United States. Opp. Mem. at 13. Although Mr. Ali
    has not demonstrated an interest in fleeing, he has strong incentives to do so — to be reunited
    with his six-year old son in Somalia and to avoid a mandatory life sentence. Furthermore,
    Mr. Ali has previously used aliases and has misrepresented himself in past dealings with the INS.
    Such past acts of deception provide evidence supporting the presumption that Mr. Ali poses a
    risk of flight. See United States v. Khanu, 
    370 Fed. Appx. 121
    , 122 (D.C. Cir. 2010).
    Mr. Ali argues that this case is similar to United States v. Karni, 
    298 F. Supp. 2d 129
     (D.D.C. 2004), and United States v. Hanson, 
    613 F. Supp. 2d 85
     (D.D.C. 2009). In Karni,
    the defendant was charged with acquiring products that are capable of triggering nuclear weapons
    and exporting them to Pakistan. United States v. Karni, 
    298 F.Supp.2d at 130
    . Because the
    charge was nonviolent in nature — and the Court had been provided with letters of support
    attesting to Mr. Karni’s nonviolent nature — and Mr. Karni had no criminal history, there was no
    rebuttable presumption at play in Karni, as there is here. 
    Id. at 131-32
    . Although Judge Hogan
    acknowledged a risk of flight in view of Karni’s lack of ties to the United states, he released him
    under stringent conditions, including home detention and electronic monitoring. 
    Id. at 133
    . In
    Hanson, the defendant was charged with illegally exporting unmanned aerial vehicle autopilot
    9
    components. United States v. Hanson, 
    613 F. Supp. 2d at 87
    . Ms. Hanson also had no criminal
    history and was charged with a nonviolent crime, so, as in Karni, the Court had no need to
    consider the statutory rebuttable presumption. Ms. Hanson, unlike Mr. Karni, did have
    significant ties to the United States, as she lived with her husband in the District of Columbia,
    owned a home in California, and was a naturalized U.S. citizen. 
    Id. at 88-89
    . Despite the fact
    that she also had very significant ties to China, including property and close relatives there, the
    Court released Ms. Hanson on conditions including home detention with electronic monitoring
    and a substantial bond. 
    Id. at 91
    .
    Both Karni and Hanson are distinguishable from this case. First, neither involved
    a charge that triggers the statutory presumption under which the Court presumes at the outset that
    there is no condition or combination of conditions under which the defendant can be released.
    See 
    18 U.S.C. § 3142
    (e)(3)(C). Even with the defendant’s evidence and proffers, that
    presumption is incorporated into the other factors considered by this Court in determining
    whether to grant a conditional release and is given substantial weight. United States v. Bess, 
    678 F. Supp. at 934
    . Second, neither Mr. Karni nor Ms. Hanson was involved in a violent criminal
    enterprise, nor was the Court presented with evidence of past acts of fraud and misrepresentation.
    Third, Mr. Ali has no significant ties to the United States. He left the District of Columbia four
    years ago; he has no property here and no apparent funds. All of his immediate family members
    are outside the United States. Finally, Mr. Ali faces a very significant sentence in this case: a
    piracy conviction carries with it a mandatory life sentence, and hostage taking carries a sentence
    of any number of years up to life. By contrast, Ms. Hanson faced a maximum sentence of twenty
    years, United States v. Hanson, 
    613 F. Supp.2d at 87
    ; see 
    50 U.S.C. § 1705
    , and Mr. Karni was
    10
    charged under the same Act. As this Court stated in Anderson, “[t]he gravity of the offenses and
    the potential prison term . . . also create a considerable incentive . . . to avoid prosecution and the
    likelihood of imprisonment in the event of a conviction.” United States v. Anderson,
    
    384 F. Supp.2d at 36
    . Here, the potential term is significantly greater than in Anderson, where
    the defendant faced up to 23 years in prison. 
    Id. at 35
    . Mr. Ali faces mandatory life in prison.
    Mr. Ali suggests that conditions including home detention with electronic
    monitoring, waiver of extradition rights, and release into the custody of a third party are
    sufficient to assure his appearance. A general waiver of extradition would be effective only if
    Mr. Ali were to seek refuge in a country whose laws recognize such a waiver, and only if Mr. Ali
    were actually apprehended in that country. See United States v. Anderson, 
    384 F. Supp. 2d at 41
    .
    The country Mr. Ali would most likely flee to, given his significant ties, is Somalia, where it is
    unlikely that Mr. Ali would be apprehended, let alone extradited. See supra at 7-8. Furthermore,
    electronic monitoring would give Mr Ali ample lead time if he wished to flee the country. See
    United States v. Townsend, 
    897 F.2d 989
    , 994-95 (9th Cir. 1990) (“Nor does the wearing of an
    electronic device offer assurance against flight occurring before measures can be taken to prevent
    a detected departure from the jurisdiction.”); United States v. Anderson, 
    384 F. Supp. 2d at 41
    (conventional electronic monitoring would still “give him ample lead time if he wanted to flee”).
    The Court finds that the factors which justified conditionally releasing the
    defendants in Karni and Hanson are not present here. Although Mr. Ali has no prior criminal
    record, the charges he faces carry a maximum sentence of life imprisonment and a presumption
    that no conditions will assure his appearance. This presumption functions as evidence that
    Mr. Ali poses a flight risk. See United States v. Bess, 
    678 F. Supp. at 934
    . Mr. Ali has not lived
    11
    in the United States for several years since he returned to Somalia in order to care for his young
    son, and this continues to be an impetus for him to leave this country. Furthermore, Mr. Ali has
    repeatedly shown a willingness to misrepresent himself in his dealings with this government in
    presenting fraudulent documents to the INS. The gravity of the charges, the potential length of
    Mr. Ali’s sentence, his ties abroad, his past acts of misrepresentation, and the presumption
    created by the charges against him all lead the Court to find by a preponderance of the evidence
    that Mr. Ali poses a serious flight risk.4
    V. CONCLUSION
    For the above reasons, this Court finds that no condition or combination of
    conditions will reasonably assure the appearance of the defendant as required in this case and
    therefore will deny Defendant’s motion for an order setting forth conditions of release.
    Accordingly, it is hereby
    ORDERED that Defendant Ali Muhamed Ali’s Motion for Bond Review and to
    Impose Conditions of Release [19] is DENIED; and it is
    FURTHER ORDERED that the defendant shall be detained pending trial in this
    matter.
    SO ORDERED.
    /s/
    PAUL L. FRIEDMAN
    DATE: June 24, 2011                                  United States District Judge
    4
    The government has also suggested both in its brief and at oral argument that Mr.
    Ali may be a danger to the seafaring community along the coast of Africa. See Opp. Mem. at 13.
    The Court need not reach this issue and decides this motion on the basis of risk of flight alone.
    12