United States v. Mohamed Said

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4413
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
MOHAMED ALI SAID, a/k/a Mohammed Said, a/k/a Maxamad Cali
Saciid; MOHAMED ABDI JAMA, a/k/a Mohammed Abdi Jamah;
ABDICASIIS CABAASE; ABDI RAZAQ ABSHIR OSMAN, a/k/a
Abdirasaq Abshir; MOHAMED FARAH, a/k/a Mahamed Farraah
Hassan,
Defendants – Appellees.
No. 14-4420
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOHAMED ABDI JAMA, a/k/a Mohammed Abdi Jamah,
Defendant – Appellant.
No. 14-4421
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOHAMED FARAH, a/k/a Mahamed Farraah Hassan,
Defendant – Appellant.
No. 14-4423
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ABDI RAZAQ ABSHIR OSMAN, a/k/a Abdirasaq Abshir,
Defendant – Appellant.
No. 14-4424
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOHAMED ALI SAID, a/k/a Mohammed Said, a/k/a Maxamad Cali
Saciid,
Defendant – Appellant.
No. 14-4429
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
2
ABDICASIIS CABAASE,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cr-00057-RAJ-DEM-1; 2:10-cr-00057-RAJ-DEM-2; 2:10-
cr-00057-RAJ-DEM-4; 2:10-cr-00057-RAJ-DEM-5; 2:10-cr-00057-RAJ-
DEM-6)
Argued: May 13, 2015 Decided: August 13, 2015
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
No. 14-4413 reversed in part, vacated in part, and remanded;
Nos. 14-4420, 14-4421, 14-4423, 14-4424, and 14-4429 affirmed by
published opinion. Judge King wrote the opinion, in which Judge
Keenan and Senior Judge Davis joined. Senior Judge Davis wrote
a separate concurring opinion.
ARGUED: Benjamin L. Hatch, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellant/Cross-Appellee. Geremy C.
Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellees/Cross-Appellants. ON BRIEF: Dana J.
Boente, United States Attorney, Alexandria, Virginia, Joseph E.
DePadilla, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia; Jerome J. Teresinski,
Trial Attorney, National Security Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant/Cross-
Appellee. Michael S. Nachmanoff, Federal Public Defender,
Frances H. Pratt, Keith Loren Kimball, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellee/Cross-
Appellant Mohamed Ali Said; Robert B. Rigney, PROTOGYROU &
RIGNEY, PLC, Norfolk, Virginia, for Appellee/Cross-Appellant
Mohamed Abdi Jama; David M. Good, DAVID MICHAEL GOOD, PC,
Virginia Beach, Virginia, for Appellee/Cross-Appellant Mohamed
Farah; Trey R. Kelleter, VANDEVENTER BLACK LLP, Norfolk,
Virginia, for Appellee/Cross-Appellant Abdi Razaq Abshir Osman;
Bruce C. Sams, SAMS & GILCHRIST PLLC, Norfolk, Virginia, for
Appellee/Cross-Appellant Abdicasiis Cabaase.
3
KING, Circuit Judge:
In early 2010, a group of seven Somalis — including
defendants Mohamed Ali Said, Mohamed Abdi Jama, and Abdicasiis
Cabaase — boarded a small skiff and entered the Gulf of Aden (in
the Indian Ocean between the Arabian Peninsula and the Horn of
Africa), intending to seize a merchant ship at sea. Their
objective was foiled by the British warship HMS Chatham, which
was conducting a counter-piracy mission in the Gulf. Undeterred
by their initial lack of success, Said, Jama, and Cabaase joined
with defendants Abdi Razaq Abshir Osman and Mohamed Farah, plus
two others, and returned from Somalia to the Gulf in the skiff
in April 2010. During their April escapade, the defendants and
their accomplices launched an attack on the USS Ashland, a
United States Navy warship that they confused for a merchant
vessel. The Ashland responded by destroying the skiff and
killing one of the attackers.
After the defendants were apprehended and transported to
the Eastern District of Virginia, they were tried and convicted
of multiple offenses, including piracy as proscribed by 18
U.S.C. § 1651. At sentencing, the district court declined to
impose statutorily mandated life sentences on the defendants,
reasoning that such sentences would contravene the Eighth
Amendment’s prohibition against cruel and unusual punishment.
4
See United States v. Said, No. 2:10-cr-00057 (E.D. Va. Feb. 28,
2014), ECF No. 260 (the “Eighth Amendment Order”). 1
The government, in pursuing its appeal in No. 14-4413,
seeks relief from the district court’s decision not to impose
the life sentences required by § 1651. By their cross-appeals
in Nos. 14-4420, 14-4421, 14-4423, 14-4424, and 14-4429, the
defendants challenge the court’s failure to dismiss the § 1651
charge, the jury instructions with respect to the piracy
offense, and the sufficiency of the evidence supporting certain
of their convictions. As explained below, we reject each of the
defendants’ contentions and affirm their convictions. We deem
the government’s appeal to be meritorious, however, and reverse
the Eighth Amendment Order, vacate the defendants’ sentences,
and remand for resentencing.
I.
A.
1.
In approximately February 2010, defendants Said, Jama, and
Cabaase — along with Jama Idle Ibrahim and three others —
1 The Eighth Amendment Order is published at 3 F. Supp. 3d
515 and also found at J.A. 886-902. (Citations herein to “J.A.
__” refer to the contents of the Joint Appendix filed by the
parties in these appeals.)
5
acquired a small wooden skiff on the coast of Somalia and loaded
it with a hooked ladder and weapons, including AK-47 assault
rifles, a rocket-propelled grenade launcher (an “RPG”), a
Singapore Assault Rifle 80 (an “SAR-80”), and a Tokarev 9-mm
pistol. 2 They also equipped the skiff with two motors, enabling
it to more swiftly traverse the sea. The group then left
Somalia and travelled into the Gulf of Aden searching for a
merchant ship to seize. The Gulf is one of the most heavily
trafficked shipping corridors in the world, making it a prime
location for piracy.
On the afternoon of February 27, 2010, the skiff was
intercepted in the Gulf of Aden by the HMS Chatham of the
British Royal Navy. Upon encountering the skiff, the Chatham
actioned a helicopter for a close investigation. The Somalis,
recognizing the Chatham as a warship, attempted to flee in the
skiff and threw weapons and their ladder overboard. Those
actions were witnessed by the helicopter pilots, who conveyed
information to a boarding team that had been dispatched in
smaller boats from the warship.
The HMS Chatham’s boarding team seized and searched the
skiff, where team members discovered the pistol and ammunition
2We recite the facts in the light most favorable to the
government, as the prevailing party at trial. See United States
v. Singh, 518 F.3d 236, 241 n.2 (4th Cir. 2008).
6
for that weapon and the AK-47s. The boarding team also
apprehended and questioned the Somalis. Ibrahim, speaking as
the group’s leader, asserted that the Somalis were smugglers who
had taken human cargo to Yemen and that one of their boats had
broken down along the way. 3 Personnel of the Chatham
photographed the Somalis, confiscated the pistol and ammunition,
disabled one of the skiff’s motors, spray-painted a red
identification number on the skiff, and ordered the Somalis to
return home.
2.
In April 2010, the five defendants in this case, along with
Ibrahim and another man called the “Engineer,” used the same
skiff to enter the Gulf of Aden from Somalia. So that the skiff
“would not be recognizable,” the Somalis had obliterated the
identification number spray-painted on it by Royal Navy
personnel. See J.A. 415. To accomplish their goal of seizing a
ship, the Somalis had obtained a replacement for the disabled
motor and loaded the skiff with a hooked ladder, three AK-47s,
and an RPG. Ibrahim and Jama led the new mission, and Said was
3Ibrahim later explained that the Somalis’ cover story had
to involve two boats to seem plausible, given that seven men
claiming to be smugglers were aboard the skiff. Those who
patrol the high seas and “see people smuggling people almost
every day” would know that only two or three smugglers — and
“not more than that” — generally carry out such missions. See
J.A. 389.
7
next in command. Farah drove the skiff, and Cabaase and Osman
supplied two of the weapons.
In the pre-dawn hours of April 10, 2010, the skiff swiftly
approached a large ship believed by the Somalis to be a “cargo
ship.” See J.A. 444. Nearing the ship’s aft on its port side,
Said and Cabaase held loaded AK-47s, while Jama attempted to
load the RPG with explosive rockets. 4 When the skiff was
approximately twenty-five yards from the “cargo ship,” Cabaase
began shooting at it with his AK-47. The Somalis intended to
“scare [the crew], and then after that[,] capture the ship.”
Id. The encounter took place about forty nautical miles off the
coast of Yemen in international waters.
The targeted ship was actually the USS Ashland, a dock
landing ship of the United States Navy, which was then
transiting the Gulf of Aden transporting Marines and military
equipment. 5 Several personnel aboard the Ashland — namely,
Marine Lance Corporal John Curtis, Damage Control Fireman James
4
Unable to render the RPG operational, Jama sought the
assistance of Ibrahim, who soon realized that the ammunition on
board the skiff did not fit the RPG.
5
As one of the Ashland’s personnel later testified, the
vessel “is one of the ships in the U.S. Navy inventory that
actually looks like a merchant ship.” See J.A. 203-04. With
military equipment on board, the Ashland “could be misconstrued
as . . . a merchant container vessel that isn’t fully loaded.”
Id. at 204.
8
Hendershot, Seaman Donald Lane, Lieutenant Junior Grade Benjamin
Towers, Lieutenant Brent Holloway, and Gunner’s Mate Justin
Myers — witnessed the Somalis’ attack from several vantage
points, including near the warship’s aft, its mid-ship, and the
bridge. Several of the witnesses saw Cabaase fire multiple
rounds at the Ashland and heard bullets striking the ship. See,
e.g., J.A. 153 (Curtis: “He was deliberately shooting . . . the
weapon towards the front right over the bridge of the USS
ASHLAND.”); id. at 186 (Hendershot: “I saw a man stand up and
bring a weapon up to his shoulder aiming at the ship . . . .”);
id. at 282 (Myers: “You saw a muzzle flash followed by the
sound of a weapon, and I also heard a couple of clangs that
sounded like ricochet on the side of the boat.”). Indeed,
Corporal Curtis witnessed Cabaase “load a magazine, rack it,
fire like two to three times, bang, bang, bang. Bang, bang. He
dropped the magazine, loads another one, racks it a couple of
times, keeps shooting, bang, bang, bang.” Id. at 153-54. The
multiple shots fired at the Ashland were so startling that the
warship’s helmsman had difficulty with the steering.
Gunner’s Mate Myers initially left his remote firing
station inside the USS Ashland to observe the skiff’s assault
from the warship’s deck. After watching Cabaase fire multiple
times at the Ashland, Myers ran back to his duty station, where
he controlled 25-mm machine guns loaded with armor-piercing
9
incendiary shells. The screen of the weapons system operated by
Myers displayed images from an infrared camera mounted outside
the ship. The camera zoomed in so closely on the skiff that it
seemed “[a]lmost as if you [were] standing next to some of the
people in the skiff.” See J.A. 213. Myers’s vantage point
enabled him to see that Cabaase was aiming directly at the
Ashland. After Cabaase began firing a second series of shots,
the Ashland’s Captain ordered Myers to return fire with a 25-mm
machine gun, and Myers promptly fired two shots. As a result of
those shots from the Ashland, a fire erupted on the skiff, the
Engineer died, and Farah lost a leg. 6
The defendants jumped off the burning skiff, and Ibrahim
followed suit after throwing the RPG and two of the AK-47s
overboard. While treading water, the Somalis agreed to tell the
crew of the USS Ashland a story similar to the one that had been
concocted for the personnel of the HMS Chatham — that the skiff
was returning from smuggling refugees to Yemen. To explain why
they were travelling on one small skiff, they would tell the
Ashland’s crew about transporting refugees on a second larger
boat that had broken down before their return trip. The Somalis
also agreed to explain that they were stranded without food or
6 The defendants each suffered burns as a result of trying
to put out the fire on the skiff, but Ibrahim was not injured.
10
fuel, and that the Engineer (who was then deceased) had fired on
the Ashland to alert the crew that they were in need of rescue.
The USS Ashland and its personnel apprehended the
defendants and Ibrahim, took pictures of the skiff’s remains,
and seized its contents, including the weapons and the hooked
ladder that were left aboard. The Somalis were subsequently
transported to Virginia, where this prosecution was initiated.
B.
1.
On April 21, 2010, the grand jury in the Eastern District
of Virginia at Norfolk returned an indictment against the
defendants and Ibrahim. Nearly three months later, on July 7,
2010, the grand jury returned a superseding indictment. Those
indictments — which dealt solely with the attack on the USS
Ashland — charged the defendants and Ibrahim with, inter alia,
piracy in contravention of 18 U.S.C. § 1651. That statute
provides in full:
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.
On June 9, 2010, the defendants and Ibrahim moved to
dismiss the piracy charge of the initial indictment, contending
that piracy under § 1651 requires a robbery at sea. Because
11
their effort to seize the Ashland was unsuccessful, the
defendants and Ibrahim argued that the § 1651 piracy charge
should be dismissed. The district court agreed with the
defendants and granted their motion on August 17, 2010,
dismissing the piracy charge from the superseding indictment.
On August 21, 2010, Ibrahim entered into a plea agreement
with the United States Attorney, by which he agreed to assist
the government in its prosecution of his cohorts. On August 27,
2010, Ibrahim pleaded guilty to three counts of the superseding
indictment: attack to plunder a vessel, in contravention of 18
U.S.C. § 1659; performing an act of violence against an
individual on a vessel, in contravention of 18 U.S.C.
§ 2291(a)(6); and using, carrying, and discharging a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(iii). On November 29, 2010, Ibrahim
was sentenced to 360 months in prison.
2.
After Ibrahim was sentenced, the government filed an appeal
contesting — as to the five defendants — the district court’s
dismissal of the § 1651 piracy charge. Following an oral
argument conducted in this Court on March 25, 2011, we placed
the government’s appeal in abeyance pending argument and
decision in United States v. Dire. The Dire appeals were
brought by a separate group of Somalis who had been convicted of
12
piracy for their attack on the USS Nicholas, another Navy
warship. The Dire defendants had intended to seize the Nicholas
in the Indian Ocean, but their plan was foiled by the Nicholas’s
crew.
Like the defendants here, the Dire defendants argued that
§ 1651 requires a robbery — i.e., seizing or otherwise robbing a
vessel. That contention is premised primarily on the Supreme
Court’s decision in United States v. Smith, 18 U.S. (5 Wheat.)
153, 162 (1820), where the Court indicated that it had “no
hesitation in declaring, that piracy, by the law of nations, is
robbery upon the sea.” As the argument goes, because “a court
must interpret a statute by its ordinary meaning at the time of
its enactment,” and because the language of § 1651 can be traced
to an 1819 act of Congress, the Smith decision of 1820
constitutes “the definitive authority on the meaning of piracy.”
See United States v. Dire, 680 F.3d 446, 452 (4th Cir. 2012)
(internal quotation marks omitted).
By our Dire decision, however, we rejected the theory that
the meaning of piracy for purposes of § 1651 “was fixed in the
early Nineteenth Century.” See 680 F.3d at 467. That is, we
excluded a static interpretation of § 1651 that would “render it
incongruous with the modern law of nations and prevent us from
exercising universal jurisdiction in piracy cases.” Id. at 468-
69. Rather, consistent with Congress’s intent “to define piracy
13
as a universal jurisdiction crime,” we concluded that “§ 1651
incorporates a definition of piracy that changes with
advancements in the law of nations.” Id. at 469. We recognized
in Dire that, for decades, piracy has been defined by the law of
nations to include:
(A) (1) any illegal act of violence or detention, or
any act of depredation; (2) committed for private
ends; (3) on the high seas or a place outside the
jurisdiction of any state; (4) by the crew or the
passengers of a private ship; (5) and directed
against another ship, or against persons or
property on board such ship; or
(B) (1) any act of voluntary participation in the
operation of a ship; (2) with knowledge of the
facts making it a pirate ship; or
(C) (1) any act of inciting or of intentionally
facilitating (2) an act described in subparagraph
(A) or (B).
Id. at 465 (alterations and internal quotation marks omitted)
(drawing definition from the substantively identical Geneva
Convention on the High Seas (the “High Seas Convention”) and
United Nations Convention on the Law of the Sea (the “UNCLOS”)).
Because the foregoing definition of piracy encompassed the
Dire defendants’ conduct, we affirmed their convictions under
§ 1651. The very day we decided Dire — that is, May 23, 2012 —
we vacated the district court’s dismissal of the § 1651 piracy
charge in this case and “remand[ed] for such other and further
proceedings as may be appropriate, consistent with our decision
14
in Dire.” See United States v. Said, 680 F.3d 374, 375 (4th
Cir. 2012). 7
3.
On August 8, 2012, after our remand to the district court,
the grand jury returned a second superseding indictment against
the defendants (the “operative indictment”), lodging additional
charges stemming from the February 2010 encounter with the
British warship HMS Chatham. As a result of Ibrahim’s
cooperation, the government investigators and the grand jury had
obtained evidence supporting those additional counts. The
operative indictment contained the following charges:
● Count One — Conspiracy to commit hostage taking
(18 U.S.C. § 1203(a));
● Count Two — Conspiracy to commit kidnapping (18
U.S.C. § 1201(c));
● Count Three — Conspiracy to perform an act of
violence against an individual on a vessel (18
U.S.C. § 2291(a)(9));
● Count Four — Conspiracy to use and carry a
firearm and a destructive device during and in
relation to, and possessing a firearm and a
destructive device in furtherance of, a crime of
violence, specifically the crimes charged in
Counts One through Three and Five through Eight
(18 U.S.C. § 924(o));
7 The Dire defendants and the defendants in this case filed
petitions for writs of certiorari in the Supreme Court, seeking
to have the Court reverse our ruling in Dire concerning the
ambit of § 1651. Those petitions were denied on January 22,
2013. See 133 S. Ct. 982 (2013).
15
● Count Five — Piracy as defined by the law of
nations (18 U.S.C. § 1651);
● Count Six — Attack to plunder a vessel (18 U.S.C.
§ 1659);
● Count Seven — Assault with a dangerous weapon on
a federal officer or employee (18 U.S.C.
§ 111(a)(1) and (b));
● Count Eight — Performing an act of violence
against an individual on a vessel (18 U.S.C.
§ 2291(a)(6));
● Count Nine — Using and carrying a firearm during
and in relation to, and possessing a firearm in
furtherance of, a crime of violence, specifically
the crimes charged in Counts One through Three
(18 U.S.C. § 924(c)(1)(A)); and
● Count Ten — Using, carrying, and discharging a
firearm during and in relation to a crime of
violence, specifically the crimes charged in
Counts One through Three and Five through Eight
(18 U.S.C. § 924(c)(1)(A)(iii)).
Counts One through Four of the operative indictment encompass
the time period in which the encounters with the HMS Chatham and
the USS Ashland occurred. Counts Five through Eight, plus Ten,
deal solely with the attack on the Ashland, and Count Nine
relates only to the Chatham. Counts Five through Ten include
allegations of aiding and abetting, pursuant to 18 U.S.C.
§ 2(a).
Defendants Said, Jama, and Cabaase were named in all ten
counts of the operative indictment. Defendants Osman and Farah
were named in all counts except Count Nine. Prior to trial, the
16
defendants again moved to dismiss the § 1651 piracy charge
(Count Five of the operative indictment), which the district
court denied on the basis of the Dire decision.
4.
The defendants’ trial began in Norfolk on February 19,
2013, and concluded on February 27, 2013. The trial featured
extensive testimony from personnel aboard the USS Ashland and
the HMS Chatham during their encounters in 2010 with the
defendants. Ibrahim was called to the stand by the government,
and the prosecutors used his testimony to establish several
details underlying their case.
Ibrahim began by explaining how he became involved in
piracy activities. For example, after seeing “a lot of people
in [his] neighborhood making a lot of money [and] buying houses
and nice cars” from acts of piracy, he decided to “jump on that,
too.” J.A. 360. Thus, in November 2008, Ibrahim joined a group
of Somali pirates — none of whom are involved in this case — on
a mission to seize merchant ships near the coast of Yemen. That
group forcibly seized a Danish ship called the CEC Future, using
assault weapons and a ladder. The pirates removed the Future to
Somalia and held it “until [they] got a ransom” in January 2009.
Id. at 363. Ibrahim was paid $17,000 for that piracy mission.
In early 2010, Ibrahim sought out another piracy mission in
order to “get more money.” J.A. 365. In February 2010, he
17
joined Said, Jama, Cabaase, and three others on the mission to
“seize a ship” that was thwarted by the HMS Chatham. Id. at
383. Thereafter, in April 2010, Ibrahim and the defendants set
out with another plan to “seize a ship” and “make money.” Id.
at 403. Ibrahim described his and the defendants’ subsequent
attack on the USS Ashland and their apprehension by its
personnel. After being indicted for the Ashland attack, Ibrahim
explained, he decided to plead guilty and cooperate with the
federal prosecutors, seeking a less severe sentence. 8
At the close of the prosecution’s case, on February 25,
2013, the defendants moved for judgments of acquittal. The
trial court denied the motions. The defendants rested without
calling witnesses. The defendants objected to the court’s
proposed instructions on piracy under § 1651, which adopted the
legal principles recognized and applied in Dire. The court
overruled the defendants’ objections and instructed the jury in
a manner consistent with Dire. At the conclusion of the six-day
trial, on February 27, 2013, the jury convicted the defendants
on all counts. The defendants jointly filed a renewed motion
8
After entering his guilty pleas in this case, Ibrahim
pleaded guilty in the District of Columbia to charges relating
to the 2008 seizure of the CEC Future. He was subsequently
sentenced in that prosecution to twenty-five years in prison, to
run concurrently with his sentence here.
18
for judgments of acquittal on May 13, 2013, which the court
denied on August 1, 2013.
5.
On October 4, 2013, prior to their sentencing hearings, the
defendants filed a motion to invalidate § 1651’s mandatory life
sentence on Eighth Amendment grounds. By its Eighth Amendment
Order of February 28, 2014, the district court granted the
motion.
The Eighth Amendment Order concluded that life sentences in
the circumstances of this prosecution would contravene the
defendants’ Eighth Amendment rights. The district court began
its analysis by recognizing the Supreme Court’s two-prong
framework for assessing as-applied Eighth Amendment challenges
to non-capital sentences, as spelled out in Graham v. Florida,
560 U.S. 48 (2010). The district court explained that, under
prong one, a court must “compare the gravity of the offense and
the severity of the sentence,” and determine “if that comparison
yields ‘an inference of gross disproportionality,’ which should
be a ‘rare’ result.” See Eighth Amendment Order 6 (quoting
Graham, 560 U.S. at 60). Upon ascertaining an inference of
gross disproportionality, the court moves to prong two, which
requires it to “compare the sentence with sentences received
with other offenders in the same jurisdiction and with sentences
imposed for the same crime in other jurisdictions.” Id. “If
19
that analysis confirms that the sentence is grossly
disproportionate,” the district court explained, “then to impose
the sentence would violate the Eighth Amendment.” Id.
At prong one of the Eighth Amendment analysis, the district
court assessed whether an inference of gross disproportionality
arose upon comparing the proposed life sentences with the
gravity of the defendants’ § 1651 piracy offenses. The court
reasoned that, although piracy is generally a serious offense,
“this was not a run-of-the-mill case of modern piracy.” See
Eighth Amendment Order 11. Indeed, the court explained that the
defendants’ offenses were more properly characterized as
attempted piracy, in that “[n]o victims were caused any physical
harm, and it is unclear whether there was even any property
damage.” Id. The court concluded that the defendants had
satisfied prong one of the Eighth Amendment analysis by
establishing the inference that life sentences would be grossly
disproportionate to their piracy offenses. Id. at 12.
The district court then turned to prong two of the Eighth
Amendment analysis, comparing the proposed life sentences with
sentences imposed on other offenders in the same jurisdiction
and with sentences imposed for piracy in other jurisdictions.
The court observed that, with the exception of statutes
punishing recidivist offenders, almost all of the “federal
criminal statutes carrying a mandatory minimum life sentence
20
. . . involve the death of another person.” See Eighth
Amendment Order 13. The court also perceived that imposing “a
life sentence for the conduct in this case [would be] unique
internationally,” on the premise that the “global average
sentence for piracy is just over 14 years.” Id. at 16.
Accordingly, the court concluded that the “statutorily-mandated
sentence violates the Eighth Amendment and cannot be imposed.”
Id.
By its Eighth Amendment Order, the district court directed
the parties to submit supplemental briefing on the appropriate
sentences for the defendants’ piracy convictions, in view of the
court’s invalidation of the mandatory life sentence. In his
supplemental brief, the United States Attorney urged the court
to impose a life sentence on each of the defendants, asserting
that such sentences were legally mandated. The defendants, by
contrast, made recommendations of various non-life sentences.
The defendants’ sentencing hearings were conducted on May
14 and 15, 2014. Said was sentenced to an aggregate of 500
months (140 months for his § 1651 piracy offense), Jama to 500
months (140 months for piracy), Cabaase to 510 months (150
months for piracy), Osman to 360 months (240 months for piracy),
and Farah to 384 months (264 months for piracy). The government
and the defendants timely noted their respective appeals, and we
21
possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(b).
II.
Although the defendants are cross-appellants in these
proceedings, we will review their contentions in the first
instance, as our dispositions of their appeals could render moot
the government’s challenge to the defendants’ non-life sentences
for their 18 U.S.C. § 1651 piracy offenses. By their appeals,
the defendants contend that the district court erred in denying
their motion to dismiss the piracy charge and in instructing the
jury on the elements of piracy under § 1651. The defendants
also maintain that the court erroneously denied their motions
for judgments of acquittal, arguing that the evidence was
insufficient to prove piracy and certain other offenses.
A.
In contending that the district court erred with respect to
the § 1651 piracy offense by declining to dismiss that charge
and by erroneously instructing the jury, the defendants contest
the court’s reliance on United States v. Dire, 680 F.3d 446 (4th
Cir. 2012). We review de novo a district court’s denial of a
motion to dismiss an indictment where the denial depends solely
on questions of law. See United States v. Hatcher, 560 F.3d
222, 224 (4th Cir. 2009). We also review de novo the claim that
22
a jury instruction failed to correctly state the applicable law.
See United States v. Jefferson, 674 F.3d 332, 351 (4th Cir.
2012).
The defendants again advance the contention — considered
and rejected in Dire — that the definition of piracy under
§ 1651 is limited to robbery at sea. Nevertheless, the
defendants concede that we are obliged to adhere to Dire, as one
panel of this Court is not entitled to overrule another panel.
See McMellon v. United States, 387 F.3d 329, 333-34 (4th Cir.
2004) (en banc). Furthermore, the defendants do not dispute
that the district court faithfully applied the Dire principles.
We thus have no trouble concluding that the court did not err in
declining to dismiss the piracy charge or in instructing the
jury on the elements of the § 1651 offense. 9
B.
Turning to the evidentiary issues, each defendant
challenges the sufficiency of the evidence as to the § 1651
piracy offense. Additionally, the defendants, except for Said,
challenge the sufficiency of the evidence on the offenses
9 Notably, we are not alone in our interpretation of § 1651.
Other courts, including two courts of appeals, have adopted the
definition of piracy announced in Dire. See United States v.
Ali, 718 F.3d 929, 936-37 (D.C. Cir. 2013); Inst. of Cetacean
Research v. Sea Shepherd Conservation Soc’y, 725 F.3d 940, 943
(9th Cir. 2013).
23
charged in Count One (conspiracy to commit hostage taking),
Count Two (conspiracy to commit kidnapping), and Count Three
(conspiracy to perform an act of violence against an individual
on a vessel). Because Counts One through Three served as the
predicate offenses for Count Nine (using and carrying a firearm
during and in relation to, and possessing a firearm in
furtherance of, a crime of violence), defendants Jama and
Cabaase also seek vacatur of their Count Nine convictions. 10
We review de novo a trial court’s denial of a motion for
judgment of acquittal. See United States v. Reed, 780 F.3d 260,
269 (4th Cir. 2015). In reviewing evidence sufficiency
contentions, we are obliged to “view the evidence in the light
most favorable to the government and sustain the jury’s verdict
if any rational trier of fact could have found the essential
elements of the crime charged beyond a reasonable doubt.”
United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014)
(emphasis and internal quotation marks omitted). A defendant
10
None of the defendants challenge their convictions of the
offenses charged in Count Four (conspiracy to use and carry a
firearm and a destructive device during and in relation to, and
possessing a firearm and a destructive device in furtherance of,
a crime of violence); Count Six (attack to plunder a vessel);
Count Seven (assault with a dangerous weapon on a federal
officer or employee); Count Eight (performing an act of violence
against an individual on a vessel); and Count Ten (using,
carrying, and discharging a firearm during and in relation to a
crime of violence).
24
challenging the sufficiency of the evidence faces a heavy
burden, as “[r]eversal for insufficient evidence is reserved for
the rare case where the prosecution’s failure is clear.” United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal
quotation marks omitted).
1.
The defendants first challenge the sufficiency of the
evidence on the § 1651 offense, which relates solely to their
attack on the USS Ashland. In support of their sufficiency
contention, the defendants reiterate the argument that piracy
requires a robbery at sea. As we have explained, however, their
position is foreclosed by Dire.
Furthermore, the government presented sufficient evidence
to prove that the defendants’ conduct constituted piracy under
the Dire principles. The evidence established, inter alia, the
following:
● The defendants set out from Somalia in their
skiff with the intent to seize a merchant ship
and tools to do so, including a hooked ladder,
three AK-47s, and an RPG;
● Seeking to capture the USS Ashland in
international waters, Cabaase fired multiple AK-
47 rounds at the Ashland from the skiff. See
Dire, 680 F.3d at 465 (explaining that piracy
includes “(A)(1) any illegal act of violence
. . . ; (2) committed for private ends; (3) on
the high seas . . . ; (4) by the crew or the
passengers of a private ship; (5) and directed
against another ship, or against persons or
25
property on board such ship” (alterations and
internal quotation marks omitted));
● Farah drove the skiff as the defendants hunted a
ship to seize and then targeted the Ashland. See
id. (further defining piracy as “(B)(1) any act
of voluntary participation in the operation of a
ship; (2) with knowledge of the facts making it a
pirate ship” (alterations and internal quotation
marks omitted); and
● Osman, along with Cabaase, had supplied two of
the weapons, and Jama and Said, a leader and next
in command for the mission, carried an RPG and an
AK-47 during the Ashland attack. See id. (lastly
defining piracy as “(C)(1) any act of inciting or
of intentionally facilitating (2) an act
described in subparagraph (A) or (B) (internal
quotation marks omitted)); see also United States
v. Shibin, 722 F.3d 233, 240 (4th Cir. 2013)
(recognizing “that the facilitating conduct of
[subparagraph (C)] is ‘functionally equivalent’
to aiding and abetting criminal conduct, as
proscribed by 18 U.S.C. § 2”).
Accordingly, we are well satisfied that, on the evidence
presented, a reasonable jury was entitled to conclude beyond a
reasonable doubt that each of the defendants committed the
§ 1651 piracy offense.
2.
Next, defendants Jama, Cabaase, Osman, and Farah challenge
the sufficiency of the evidence on the conspiracy offenses
charged in Counts One through Three, encompassing the time
period in which the encounters with the HMS Chatham and the USS
Ashland occurred. As for Counts One and Two, the operative
indictment alleged that the defendants conspired to commit
26
hostage taking and kidnapping, in that they went to sea with the
intent to hijack a ship and hold the vessel and its crew for
ransom. See 18 U.S.C. § 1203(a) (proscribing conspiracy to
commit hostage taking); id. § 1201(c) (same for conspiracy to
commit kidnapping). These four defendants contend that there
was insufficient evidence to prove that they conspired to kidnap
or hold any person hostage for ransom. They assert that the
evidence showed merely that they intended to seize a ship to
make money.
Upon seizing a ship, however, the defendants would have had
to either detain the crew members and personnel on board or
throw them off the vessel. A reasonable jury could conclude
that the defendants intended to pursue the former option — that
is, detain the crew and other personnel — given that their
shared goal was to “make money,” and that they could do so by
ransoming captives. See, e.g., J.A. 403 (Ibrahim’s testimony
that the defendants’ mutual objective at the time of the USS
Ashland attack was “[t]o seize a ship so we can make money”).
That evidence, illustrating the defendants’ thirst for funds,
was sufficient to prove that the defendants conspired to profit
by kidnapping and holding crew members and personnel hostage in
exchange for ransom. Tellingly, there was no commonsense
alternative offered to the jury. Although these defendants now
contend that they might have intended to make money by, for
27
example, selling the seized ship, they did not argue such a
theory, or present any evidence supporting it, at trial.
Indeed, the defense focused on convincing the jury that the
defendants were smugglers rather than pirates.
Turning to Count Three, the operative indictment alleged
that the defendants conspired to perform an act of violence
against an individual on a vessel, and that such act of violence
was likely to endanger the safety of those on board. See 18
U.S.C. § 2291(a)(9) (criminalizing conspiracy to “do anything
prohibited under paragraphs (1) through (8),” including
performing act of violence against individual on vessel, as
proscribed by paragraph (6)). Jama, Cabaase, Osman, and Farah
contend that their mere intent to seize a ship does not also
prove an intention to perform an act of violence against the
ship’s crew or other personnel. Rather, according to these
defendants, “[o]ne might seize a vessel by surprise or
acquiescence.” See Br. of Cross-Appellants 59.
The trial evidence, however, was more than sufficient to
prove that, at the time of the encounters with the HMS Chatham
and the USS Ashland, the defendants were equipped and ready to
commit violence against individuals on board in furtherance of
their goal of seizing a ship. During the Ashland attack, they
carried an RPG and three AK-47s — two provided by Cabaase and
Osman — in their small, open skiff. While Farah drove the skiff
28
into position, Jama attempted to load the RPG, and Cabaase fired
multiple rounds from his AK-47 at the Ashland in order “to
capture the ship.” See J.A. 444. From that evidence, a
reasonable jury could conclude that these defendants conspired
to perform an act of violence against an individual on a vessel,
as part of their plan to forcibly seize a ship.
In these circumstances, the guilty verdicts on Count Three,
as well as Counts One and Two, were adequately supported by the
evidence. Because we therefore must affirm the convictions of
Jama, Cabaase, Osman, and Farah on Counts One through Three, we
also uphold Jama’s and Cabaase’s convictions on Count Nine.
III.
Having resolved each defendant’s appeal against him, we
turn to the government’s appeal from the district court’s Eighth
Amendment Order. The government contends that the court
erroneously determined that 18 U.S.C. § 1651’s mandatory life
sentence, as applied to the defendants, contravenes the Eighth
Amendment’s prohibition against cruel and unusual punishment.
The defendants, by contrast, maintain that the court properly
imposed non-life sentences for their piracy offenses. We review
de novo the question of whether a sentence runs afoul of the
Eighth Amendment. See United States v. Cobler, 748 F.3d 570,
574 (4th Cir. 2014).
29
A.
We begin our consideration of the government’s appeal by
identifying the controlling legal framework. The Eighth
Amendment provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. In deciding whether a
punishment is cruel and unusual, we must examine the “evolving
standards of decency that mark the progress of a maturing
society.” Graham v. Florida, 560 U.S. 48, 58 (2010) (internal
quotation marks omitted). A punishment is cruel and unusual not
only when it is “inherently barbaric,” but also when it is
“disproportionate to the crime.” Id. at 59. Indeed, “[t]he
concept of proportionality is central to the Eighth Amendment.”
Id.
Here, the defendants pursued as-applied challenges to
§ 1651’s mandatory life sentence. See Cobler, 748 F.3d at 575
(“Under an as-applied challenge, a defendant contests the length
of a certain [non-capital] sentence as being disproportionate
given all the circumstances in a particular case.” (internal
quotation marks omitted)). As the district court recognized in
its Eighth Amendment Order, the Supreme Court has adopted a two-
prong test for assessing an as-applied challenge to the
proportionality of a sentence. Under prong one, a court must
determine whether a threshold comparison of “the gravity of the
30
offense and the severity of the sentence” produces “an inference
of gross disproportionality.” See Graham, 560 U.S. at 60
(internal quotation marks omitted) (relying on principles set
forth in Solem v. Helm, 463 U.S. 277 (1983)). If prong one is
satisfied, the court moves to an analysis of prong two. Under
that prong, the court must “compare the defendant’s sentence
with the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the same crime
in other jurisdictions.” Id. If that comparison “validates an
initial judgment that the sentence is grossly disproportionate,
the sentence is cruel and unusual.” Id. (alterations and
internal quotation marks omitted).
The Supreme Court has on one occasion — in its Solem
decision of 1983 — identified a non-capital sentence as being
grossly disproportionate. There, the recidivist defendant
(Helm) was sentenced to life without parole for uttering a $100
bad check. The Court observed that the matter involved “one of
the most passive felonies a person could commit,” in that the
offense “involved neither violence nor threat of violence to any
person”; Helm’s prior offenses “were all relatively minor”; and
life imprisonment was “the most severe punishment that the State
could have imposed on any criminal for any crime.” See Solem,
463 U.S. at 296-97 (internal quotation marks omitted). The
Court further determined that “Helm has been treated in the same
31
manner as, or more severely than, criminals [in the same
jurisdiction] who have committed far more serious crimes,” and
that “Helm was treated more severely than he would have been in
any other State” except possibly one. See id. at 299-300. In
those circumstances, the Court concluded that Helm’s life
sentence was “significantly disproportionate to his crime” and
“therefore prohibited by the Eighth Amendment.” Id. at 303.
The Solem decision emphasized, however, that “outside the
context of capital punishment, successful challenges to the
proportionality of particular sentences will be exceedingly
rare.” Id. at 289-90 (alteration, emphasis, and internal
quotation marks omitted).
Since Solem was decided, not a single “defendant before the
Supreme Court has been successful in establishing even a
threshold inference of gross disproportionality” in a non-
capital case. See Cobler, 748 F.3d at 576. For example, in
Harmelin v. Michigan, 501 U.S. 957 (1991), the Court rejected an
as-applied Eighth Amendment challenge to a mandatory life
sentence in a cocaine possession case. Justice Kennedy
distinguished the “passive” check fraud crime in Solem from the
“pernicious” drug offense at issue in Harmelin, observing that
the latter crime “threatened to cause grave harm to society.”
See Harmelin, 501 U.S. at 1002 (Kennedy, J., concurring in part
and concurring in the judgment) (internal quotation marks
32
omitted). 11 In rejecting Harmelin’s Eighth Amendment challenge,
Justice Kennedy also stressed the proposition that courts should
give “substantial deference” to legislatures in determining the
severity of punishments. See id. at 998-99 (internal quotation
marks omitted).
The Supreme Court has more recently rejected an as-applied
Eighth Amendment challenge for lack of an inference of gross
disproportionality in Ewing v. California, 538 U.S. 11 (2003).
Ewing received a sentence of twenty-five years to life under
California’s “three strikes” law for stealing $1,200 worth of
golf clubs. Distinguishing his crime from that in Solem, the
Court observed that the theft offense “was certainly not one of
the most passive felonies a person could commit.” See Ewing,
538 U.S. at 28 (internal quotation marks omitted). The Court
then explained that, although Ewing’s sentence was “a long
one[,] . . . it reflect[ed] a rational legislative judgment,
11Although a majority failed to coalesce in Harmelin
concerning the scope of the Eighth Amendment’s proportionality
guarantee, Justice Kennedy’s opinion, which was joined by two of
his colleagues, has been recognized by the Supreme Court as the
controlling decision on that issue. See Graham, 560 U.S. at 59-
60. It is thereby established that “the Eighth Amendment
contains a ‘narrow proportionality principle,’ that ‘does not
require strict proportionality between crime and sentence’ but
rather ‘forbids only extreme sentences that are “grossly
disproportionate” to the crime.’” Id. (quoting Harmelin, 501
U.S. at 997, 1000-01 (Kennedy, J., concurring in part and
concurring in the judgment)).
33
entitled to deference, that offenders who have committed serious
or violent felonies and who continue to commit felonies must be
incapacitated.” Id. at 30.
By our subsequent Cobler decision, we upheld a 120-year
sentence imposed on a defendant who not only “possess[ed] large
quantities of child pornography that he downloaded and shared on
the Internet,” but “also created depictions of his own sexual
exploitation, molestation, and abuse of a four-year-old child.”
See 748 F.3d at 580. Applying the Supreme Court’s two-prong
test for an as-applied Eighth Amendment challenge, Cobler failed
at prong one. We explained:
Given the shocking and vile conduct underlying these
criminal convictions, we hold that Cobler has failed
to substantiate the required threshold inference of
gross disproportionality. Even assuming, without
deciding, that Cobler’s 120-year term of imprisonment
is functionally equivalent to a sentence of life
imprisonment without the possibility of parole, we
conclude that Cobler’s multiple child pornography
crimes are at least as grave as the drug offense in
Harmelin, which the Supreme Court deemed sufficiently
egregious to justify a similar sentence.
Id. (footnote omitted). Judge Keenan emphasized the rarity of
cases in which an inference of gross disproportionality may be
drawn, noting the singularity of the Supreme Court’s Solem
decision and distinguishing the check fraud offense there from
the crimes perpetrated by Cobler. See id. (“Far from being ‘one
of the most passive felonies a person could commit,’ Cobler’s
34
heinous acts exploited, injured, and inflicted great harm on a
most vulnerable victim.” (quoting Solem, 463 U.S. at 296)).
On the issue of gross disproportionality, Cobler is typical
of this Court’s decisions. 12 Significantly, we have not
identified a grossly disproportionate life sentence or putative
life sentence in the wake of Solem. See, e.g., United States v.
Dowell, 771 F.3d 162, 167-69 (4th Cir. 2014) (eighty-year
sentence for child pornography); United States v. Myers, 280
F.3d 407, 415-16 (4th Cir. 2002) (life sentence imposed under
Armed Career Criminal Act for being felon in possession of
firearm); United States v. Kratsas, 45 F.3d 63, 68-69 (4th Cir.
1995) (repeat drug offender’s life sentence for conspiracy to
distribute cocaine); United States v. D’Anjou, 16 F.3d 604, 612-
14 (4th Cir. 1994) (life sentence for conspiracy to distribute
cocaine base).
12 Our Cobler decision was rendered in April 2014 — nearly
two months after the district court had entered its Eighth
Amendment Order in this case. The district court, upon being
presented with Cobler, responded at defendant Said’s sentencing
hearing on May 14, 2014, that it
read [Cobler and] understands that there has not been
any precedent that would appear favorable to what the
[Eighth Amendment Order] has ruled, but the precedent
is usually the precedent until the precedent changes.
J.A. 1104.
35
B.
With the foregoing legal framework in mind, we assess the
government’s challenge to the defendants’ non-life sentences for
their § 1651 piracy offenses. Prong one of the applicable
analysis requires that we decide whether a threshold comparison
of the gravity of the defendants’ offenses and the severity of
the proposed life sentences leads to an inference of gross
disproportionality. See Graham, 560 U.S. at 60. The defendants
contend that life sentences would be grossly disproportionate to
their conduct, which, echoing the district court, they describe
as mere “attempted robbery on the high seas” that “resulted in
no property damage to the USS Ashland and no physical harm to
any of its occupants.” Br. of Cross-Appellants 39.
As discussed above, however, the defendants’ § 1651 piracy
offenses included committing illegal acts of violence for
private ends (Cabaase), operating a pirate ship (Farah), and
otherwise facilitating the violent acts (Said, Jama, and Osman).
When the defendants engaged in that conduct, their piracy
offenses were complete. Those offenses were hardly “passive”;
rather, they involved “violence []or threat[s] of violence to
[m]any person[s].” See Solem, 463 U.S. at 296. Indeed, the
defendants’ violent conduct was at least as severe as the
cocaine possession in Harmelin. It is of no moment that no one
aboard the USS Ashland was harmed before the defendants’ attack
36
was thwarted. Cf. Dowell, 771 F.3d at 169 (“We reject out of
hand the notion that the sexual abuse of a child can be
considered nonviolent merely because it does not lead to
physical or life-threatening injuries.”). That is, “[t]he mere
fact that [the defendants’] acts of [violence] did not inflict
. . . physical injury [to the Ashland’s personnel] does not
render [life sentences] disproportionate.” See id. 13
Furthermore, § 1651’s mandatory life sentence “reflects a
rational legislative judgment, entitled to deference,” that
piracy in international waters is a crime deserving of one of
the harshest of penalties. See Ewing, 538 U.S. at 30. The
government has helpfully and cogently detailed why such an
offense is sufficiently grave to merit life imprisonment. Above
all, “for centuries, pirates have been universally condemned as
hostis humani generis — enemies of all mankind — because they
attack vessels on the high seas, and thus outside of any
nation’s territorial jurisdiction, with devastating effect to
global commerce and navigation.” United States v. Dire, 680
F.3d 446, 454 (4th Cir. 2012) (alterations and internal
quotation marks omitted). Piracy was of such significance to
the Framers that they expressly accorded Congress, in what is
13
Of course, the defendants’ attack on the USS Ashland was
not casualty-free. The Engineer was killed and the defendants
suffered burns when the Ashland returned fire.
37
known as the Define and Punish Clause, the power “[t]o define
and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations.” U.S. Const. art. I, § 8,
cl. 10. In 1790, the First Congress created a series of crimes
related to piracy, many of which were punishable by death. The
piracy offense proscribed by § 1651 carried a mandatory death
sentence from the offense’s inception in 1819 until 1909, when
Congress reduced the penalty to mandatory life.
The prevailing definition of piracy, “spelled out in the
UNCLOS, as well as the High Seas Convention before it, has only
been reaffirmed in recent years as nations around the world have
banded together to combat the escalating scourge of piracy.”
Dire, 680 F.3d at 469. From 2005 to the fall of 2010, for
example, Somali pirates hijacked approximately 170 vessels and
fired upon some 280 more. See J.A. 952-53 (expert testimony at
November 2010 trial of Dire defendants). Then, “[i]n 2011,
armed Somali pirates attacked an estimated 3,863 seafarers and
took some 555 individuals hostage.” See United States v. Beyle,
782 F.3d 159, 162 (4th Cir. 2015). As Judge Wilkinson aptly
explained in the Beyle decision,
[t]he 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.
Piracy poses a threat not only to the free flow of
38
global commerce, but also to the individuals who
navigate the seas.
Id. (citation omitted). Victims of piracy are robbed of their
vessels, kidnapped, held hostage, and even tortured and
murdered, while pirates are often able to find safe refuge in
the territorial waters off Somalia and collect multi-million-
dollar ransom payments. In these circumstances, we agree with
the government “that Congress could with reason conclude [that
piracy] calls for the strong medicine of a life sentence for
those who are apprehended.” See Br. of Appellant 39. 14
We are satisfied that “the relationship between the gravity
of [the defendants’] offenses and the severity of [their
proposed] punishment fails to create the threshold inference of
gross disproportionality that is required” to satisfy prong one
of the Eighth Amendment analysis. See Cobler, 748 F.3d at 580.
14 The defendants contend on appeal that we should not
afford deference to Congress’s judgment that piracy should be
punished by life imprisonment, because when that penalty was
fixed in 1909, the definition of piracy was limited to robbery
at sea and did not include their violent conduct. For that same
reason, the defendants also assert that imposing life sentences
on them would violate the Define and Punish Clause. We must
reject the defendants’ theory, however, because Congress clearly
meant to attach the mandatory life sentence to piracy, however
defined by the law of nations at the relevant time. See Dire,
680 F.3d at 468-69 (recognizing that Ҥ 1651 incorporates a
definition of piracy that changes with advancements in the law
of nations,” and that, in enacting § 1651, “Congress properly
made an act a crime, affixed a punishment to it, and declared
the court that shall have jurisdiction of the [offense]”
(alterations and internal quotation marks omitted)).
39
Thus, without moving to prong two, we rule that the district
court erred in invalidating § 1651’s mandatory life sentence as
to these defendants and is obliged to impose such sentences on
remand.
IV.
Pursuant to the foregoing, we affirm the various
convictions of the defendants. We, however, reverse the Eighth
Amendment Order, vacate the defendants’ sentences, and remand
for resentencing.
No. 14-4413 REVERSED IN PART,
VACATED IN PART, AND REMANDED
Nos. 14-4420, 14-4421, 14-4423,
14-4424, and 14-4429 AFFIRMED
40
DAVIS, Senior Circuit Judge, concurring:
I join in full Judge King’s excellent opinion. I write to
express my agreement with one thoughtfully-expressed and
eminently correct observation by the district court: Although
modern piracy is a genuine, life-threatening scourge, not all
piracy offenses are equal in severity, in heinousness, and in
the dire consequences visited on innocent seafarers. Nor are all
those who participate in such offenses deserving of life in
prison as the sole conceivable “rational” punishment. * The
civilized world knows this. The United States of America knows
this too, but has not yet elected to act on that knowledge.
Accordingly, because we are not legislators, and as Judge King
demonstrates, because the Constitution has remarkably little to
say about severe, but non-capital, criminal punishments, our
hands are tied.
Perhaps, in the fullness of time, Congress will act on the
certain knowledge we all share about criminal offenses and their
punishments, and thereby empower federal district judges (and
*Indeed, in this case, Mr. Ibrahim, who was “the group’s
leader” and who “led the new mission,” ante at 7, would seem to
have earned a life sentence. But he avoided that fate through
the magic of “substantial assistance” and the fiction of
“acceptance of responsibility,” the coins of the federal
prosecutorial realm. The inference is unavoidable that it is not
really those who participate in piracy who receive a life
sentence upon conviction (as we imagine Congress might believe),
but rather those who are convicted after electing to go to
trial.
41
not simply federal prosecutors) with discretion to fashion more
individualized punishments in this small corner of federal
criminal justice.
42