US v. Mohammad Shibin

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:11-cr-00033-RGD-DEM-1. [999148910]. [12-4652]

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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
Mohammad Ali, a/k/a Ali Jama,

Ahmed

Shibin,

a/k/a

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
opinion, in which Judge Motz and Judge Floyd joined.

wrote

the

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.

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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

negotiator.

the

Navy

personnel

to

Shibin

as

their

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.
15

counts,

and

he

was

sentenced

to

A jury convicted him on
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
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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;

testimony

and

about

(4)

prior

to

exclude

statements

FBI
made

Agent
to

Kevin

him

by

Coughlin’s
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
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pirates

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fired

two

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rocket-propelled

grenades

prompting the ship’s captain to surrender.

at

the

ship,

After taking control

of the ship in international waters, the pirates, armed with AK47s, 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

machine guns.

grenades,

and

two

large

stationary

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

confirmed,

air-dropped

at

the

released

pirates

the

ship.

4

the

After
ship

to

the
a

money

waiting

was
U.S.

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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

“investor” took over.

was

deposed

as

the

negotiator,

and

an

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.
to

establish

bridge-to-bridge

After Navy personnel were able
radio

5

communications

with

the

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pirates,

the

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pirates

told

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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 Englishspeaking 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”

phone

feature

on

his

that

hijackings in and around Somali waters.
7

sent

him

messages

about

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With

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Shibin’s

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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

Defense

Forces

between January 10 and March 1, 2011.
The

cell

phone,

which

Host

Nation

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

Shibin, asking him to call.

the

Quest

investors

had texted

Shibin’s cell phone was also in

frequent contact with various other investors, using both cell
phone calls and text messages.
seized

the

Quest,

Shibin

On the day that the pirates

received

“Sarindaaq captured Americans.”

a

text

message

stating,

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.”
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On

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April

6,

2011,

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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

superseding

role

in

indictment,

the

piracy

returned

on

of

the

August

Quest.
17,

A

later

2011,

added

charges relating to the piracy of the Marida Marguerite, as well
as

additional

Counts

1

charges

through

6,

relating
arising

to

the

piracy

of

the

Quest.

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,
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.

in

violation

9

of

18

U.S.C.

§§

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Counts

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7

15,

through

arising

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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,
1203(a) and 2;

10.

Conspiracy to commit kidnapping, in violation of
18 U.S.C. § 1201(c);

11.

Kidnapping,
in
violation
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,
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.

in

violation

of

of

18

18

U.S.C.

U.S.C.

§§

§§

in

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

jurisdiction.

motion

to

dismiss

all

charges

for

lack

of

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

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dismiss at the close of the government’s case and again prior to
sentencing, all of which the court denied.
During
Shibin

the

called

course

one

of

the

witness,

trial,

pirate

which

and

lasted

family

ten

member

days,

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

said,

not

to

be

cross

used

an

FBI

what

interpreter
Coughlin

an

was

interpreter
not

explained

present

that

he

11

Salad

Ali,

examined.
Somali

and

the

Agent

linguist

to

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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

abetted the piracies.

facilitated”

and

thereby

aided

and

The government argues that liability for

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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).
13

It allows any nation

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“jurisdiction

to

define

and

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prescribe

punishment

for

certain

offenses recognized by the community of nations as a universal
concern.”
(1987).

Restatement (Third) of Foreign Relations Law § 404
Universal jurisdiction requires “not only substantive

agreement as to certain universally condemned behavior but also
procedural

agreement

that

universal

jurisdiction

prosecute a subset of that behavior.”

exists

to

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
hostis

to

universal

humani

jurisdiction,

generis,

the

as

enemies

pirates

of

all

are

considered

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

waters,

may

be

prosecuted

piracies

of

the

Marida

as

and
an

Marguerite

place on the high seas.

in

Somalia’s

aider
and

and

the

territorial

abettor

Quest,

of

which

the
took

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.
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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

Convention

held

on

the

that
Law

Article
of

the

101
Sea

of

the

United

(“UNCLOS”)

Nations

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
property
in
a
place
outside
jurisdiction of any State;

or
the

(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)).
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(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]”

101(a).

The

parties

Article

101(c)

is

agree

any
that

“functionally

act
the

described
facilitating

equivalent”

to

in

Article

conduct
aiding

of
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
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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”

facilitating
provides:

requirement

acts

described

into
in

the

Article

definition
101(c).

of

the

Article

86

“The provisions of this Part [Part VII, “High Seas,”

which includes Article 101] apply to all parts of the sea that
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are

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not

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included

in

the

Pg: 18 of 37

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.
subordinated

acts

of

Article

101(c)

are

also

because they facilitate Article 101(a) acts.

acts

of

The
piracy

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,
interpretation

of

Shibin’s
Article

argument
101

given

is
by

inconsistent
various

with

the

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

definition of piracy under the law of nations”).

“the

In 2011, the

Security Council adopted Resolution 1976, which reaffirmed that
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“international

law,

as

Pg: 19 of 37

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

plan,

(emphasis

added).

Clearly,

those

who

“finance,

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

intentionally

at

sea,

facilitates

but

also

piracy

anyone

who

operations,

incites

including

or
key

figures of criminal networks involved in piracy who illicitly
plan,

organize,

attacks.”

facilitate,

or

finance

and

profit

from

such

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
against

that
all

piracy
nations

committed

on

and

humankind

all
19

the

high

seas

and

is

that

an

act

persons

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committing

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those

acts

on

the

Pg: 20 of 37

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. §§ 1651
and 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

States,” including conduct punished in § 1651.
2(a).

the

United

18 U.S.C. §

And nothing in § 1651 suggests that an aider and abettor

must satisfy its locational requirement.

20

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It

is

facilitator
crime.

Filed: 07/12/2013

common
to

be

in

Pg: 21 of 37

aiding-and-abetting

geographically

away

from

cases
the

for

scene

of

the
the

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

contention

that

defendant]

was

also

obvious

the
not

that

conviction
physically

robbery took place”).

there

was

is

no

invalidated

present

at

the

merit

in

because
bank

when

the
[the
the

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
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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.
at 629-30.

See Palmer, 16 U.S.

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,
Counts

1

and

7,

we

affirm

based

on

Shibin’s

his

piracy

intentionally

convictions

in

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

22

provided

no

opportunity

to

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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.
him

over

to

the

A few days later, these forces turned

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.
Ker

v.

Illinois,

abduction

is

no

119

U.S.

sufficient

436,

444

reason

(1886)

why

the

(“[S]uch
party

See

forcible

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

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valid

Doc: 46

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objection

to

his

Pg: 24 of 37

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.
law

for

this

theory,

and

we

could

But Shibin cites no case
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

prohibited the defendant’s abduction.

jurisdiction

of

a

court,

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.
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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

(Internal quotation marks and citations omitted).

his

presence.”

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

Anderson would help Shibin in this case.

suggested

in

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

process

might

have

Somalia,
been.

he
He

does
has

not

identify

identified

no

what

this

extradition

treaty or extradition process, and he has pointed to no other
established legal process that might have been applicable.
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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

Cir.

States

v.

Shi,

525

F.3d

709,

725

(9th

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.
through 6 charge Shibin with the following offenses:

26

Counts 2

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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
maritime navigation,
§§ 2280(a)(1)(H);

to
in

commit violence against
violation of 18 U.S.C.

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

constitutional

each
grant

case
of

Congress

lawmaking

acted
power”

pursuant
to

to

extend

a

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

extraterritorial conduct.

that

Congress

may

criminalize

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
27

statutes,

beyond

the

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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

2877-78,

Ltd.,

130

S.

Ct.

2869,

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

extraterritoriality,

provides
U.S.

a

clear

jurisdiction

indication

is

not

limited

of
to

offenses criminalized under international law nor dependent on
universal jurisdiction.
91

(2d

Cir.

2003)

United States v. Yousef, 327 F.3d 56,
(“[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

subordinate

to

counts

and

customary

.

.

.

United

international

28

States
law

or

law

is

not

necessarily

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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.
involved

in

hostage

taking

on

the

In this case, Shibin was

Marida

Marguerite

later found in Virginia, where he was prosecuted.

29

and

was

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Section

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2280,

on

which

Pg: 30 of 37

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
United
States
after
such
activity
committed;

the
is

(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

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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

2010)

Cir.

(concluding

31

that

§

924(c)

applies

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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).
apply

Thus, as an ancillary crime to underlying crimes that
extraterritorially,

§

924(c)

to

applies

enact

coextensively

with

the underlying crimes.
Congress’

power

extraterritorially

is

derived

statutes

generally

from

that
the

extend

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,

constitutionally
International

valid

Convention

the
as

hostage-taking
the

Against

statute,

implementation
the

December 17, 1979, T.I.A.S. No. 11,081.

Taking

of

of

is
the

Hostages,

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

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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

treaties.

with

other

statutes’

implementation

of

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’

legislation

bear

standard
a

rational

requires

that

relationship

the
to

effectuating
a

permissible

constitutional end”).
At bottom, we reject Shibin’s argument that the district
court did not have jurisdiction under “universal jurisdiction”
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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

inadmissible hearsay.

therefore

Coughlin’s

testimony

was

The district court, however, overruled

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the

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objection.

But

it

Pg: 35 of 37

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

the

court

of

inadmissible
declarant,

the
as

but

interpreter

hearsay
only

a

did

because

not

the

“language

render

interpreter

conduit.”

statements

was

United

not

the

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,

omitted)).

892

(5th

While

Cir.

2000)

interpreted
35

(internal

testimony

quotation

might

be

marks

unusable

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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.
541 U.S. 36, 59 (2004).
interpreter

at

trial

See Crawford v. Washington,

He argues that “the absence of the

prevented

[him]

from

being

able

to

challenge by cross-examination, the reliability of the out-ofcourt

statements

Crawford,

that

however,

the

“does

government
not

bar

offered

the

use

against
of

him.”

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

substantial rights.

must

show

that

the

error

affected

his

See Fed. R. Crim. P. 52(b); United States
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v. Olano, 507 U.S. 725, 734-35 (1993). Shibin, however, has made
no

mention

affected.
even

of

any

substantial

rights

that

were

adversely

Indeed, Agent Coughlin’s rebuttal testimony was not

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

testified

cell

that

the

phone.

In

investors

of

addition,
the

Quest

Salad

Ali

piracy

himself

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