US v. Mohamed Said

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 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. [999639870]. [14-4413, 14-4420, 14-4421, 14-4423, 14-4424, 14-4429]

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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,

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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

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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; 2:10cr-00057-RAJ-DEM-4; 2:10-cr-00057-RAJ-DEM-5; 2:10-cr-00057-RAJDEM-6)

Argued:

May 13, 2015

Before KING and
Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

and

August 13, 2015

DAVIS,

Senior

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/CrossAppellee.
Michael S. Nachmanoff, Federal Public Defender,
Frances H. Pratt, Keith Loren Kimball, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellee/CrossAppellant 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.
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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.
their

During their April escapade, the defendants and

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,

U.S.C. § 1651.

including

piracy

as

proscribed

by

18

At sentencing, the district court declined to

impose statutorily mandated life sentences on the defendants,
reasoning
Amendment’s

that

such

sentences

prohibition

against

4

would
cruel

contravene
and

unusual

the

Eighth

punishment.

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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

1

Ibrahim

and

three

others

—

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

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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
it

to

They also equipped the skiff with two motors, enabling

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

intercepted

afternoon
in

the

British Royal Navy.

of

Gulf

February
of

Aden

27,

by

2010,

the

HMS

the

skiff

Chatham

of

was
the

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
2

We 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).

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weapon

and

the

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AK-47s.

The

apprehended and questioned the Somalis.

boarding

team

also

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
personnel.

number

spray-painted

See J.A. 415.

on

it

by

Royal

Navy

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

3

Ibrahim 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.

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next in command.

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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
landing

targeted

ship

was

ship

the

United

of

actually

the

States

USS

Navy,

Ashland,
which

a

was

dock
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

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Hendershot, Seaman Donald Lane, Lieutenant Junior Grade Benjamin
Towers,
Myers

Lieutenant

—

Brent

witnessed

the

Holloway,
Somalis’

and

Gunner’s

attack

from

Mate

several

Justin
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.
e.g., J.A. 153 (Curtis:
weapon

towards

the

See,

“He was deliberately shooting . . . the

front

right

over

ASHLAND.”); id. at 186 (Hendershot:

the

bridge

of

the

USS

“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
9

loaded

with

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incendiary shells.

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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.”
enabled

him

Ashland.

to

see

See J.A. 213.

that

Cabaase

was

Myers’s vantage point
aiming

directly

at

the

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

overboard.

after

throwing

the

RPG

and

two

of

the

AK-47s

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.

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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

defendants and Ibrahim.

returned

an

indictment

against

the

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.

11

Because

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their

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effort

to

seize

defendants

and

should

dismissed.

be

defendants

Ibrahim

the

and

Ashland

argued

granted

The

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that

was

the

district

their

unsuccessful,

§ 1651

court

motion

on

piracy

agreed
August

the

charge

with
17,

the

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:
U.S.C.

attack to plunder a vessel, in contravention of 18

§ 1659;

individual

on

§ 2291(a)(6);

performing
a

and

an

vessel,
using,

act

in

of

violence

contravention

carrying,

and

against

of

an

18

U.S.C.

a

firearm

discharging

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

decision

in

appeal

United

States

in
v.

abeyance
Dire.

pending
The

Dire

argument

and

appeals

were

brought by a separate group of Somalis who had been convicted of
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piracy

for

warship.

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their

attack

on

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the

USS

Nicholas,

another

Navy

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.”
69.

Id. at 468-

Rather, consistent with Congress’s intent “to define piracy
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as a universal jurisdiction crime,” we concluded that “§ 1651
incorporates

a

definition

of

piracy

advancements in the law of nations.”

that

Id. at 469.

changes

with

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

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in Dire.”

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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

British

warship

HMS

the

February

Chatham.

As

2010
a

encounter
result

of

with

the

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).

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●

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.
deal

solely

with

the

Counts Five through Eight, plus Ten,

attack

relates only to the Chatham.
allegations

of

aiding

and

on

the

Ashland,

and

Count

Nine

Counts Five through Ten include
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.
16

Prior to trial, the

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defendants

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again

moved

to

Pg: 17 of 42

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

2013, and concluded on February 27, 2013.

on

February

19,

The trial featured

extensive testimony from personnel aboard the USS Ashland and
the

HMS

Chatham

defendants.
and

the

during

their

encounters

in

2010

with

the

Ibrahim was called to the stand by the government,

prosecutors

used

his

testimony

to

establish

several

details underlying their case.
Ibrahim

began

piracy activities.

by

explaining

how

he

became

involved

in

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.
17

In February 2010, he

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joined Said, Jama, Cabaase, and three others on the mission to
“seize a ship” that was thwarted by the HMS Chatham.
383.

Id. at

Thereafter, in April 2010, Ibrahim and the defendants set

out with another plan to “seize a ship” and “make money.”
at 403.
attack

Id.

Ibrahim described his and the defendants’ subsequent
on

personnel.

the

USS

Ashland

and

their

apprehension

by

its

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

trial court denied the motions.
calling

witnesses.

The

judgments

of

acquittal.

The

The defendants rested without

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.

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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.
Order

of

February

28,

2014,

the

By its Eighth Amendment

district

court

granted

the

motion.
The Eighth Amendment Order concluded that life sentences in
the

circumstances

of

this

prosecution

defendants’ Eighth Amendment rights.
its

analysis

by

recognizing

the

would

contravene

the

The district court began
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.”
19

Id.

“If

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analysis

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confirms

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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

gravity of the defendants’ § 1651 piracy offenses.

with

the

The court

reasoned that, although piracy is generally a serious offense,
“this was not a run-of-the-mill case of modern piracy.”
Eighth Amendment Order 11.
defendants’

offenses

See

Indeed, the court explained that the

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.

satisfied

prong

The
one

court
of

concluded
the

that

Eighth

the

defendants

Amendment

analysis

had
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

punishing
criminal

observed
recidivist

statutes

that,

with

offenders,

carrying

a

the
almost

mandatory
20

exception

of

statutes

of

the

“federal

minimum

life

sentence

all

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involve

the

death

Amendment Order 13.

of

Pg: 21 of 42

another

person.”

See

Eighth

The court also perceived that imposing “a

life sentence for the conduct in this case [would be] unique
internationally,”
sentence

for

on

piracy

the
is

premise
just

that

over

14

the

“global

years.”

Id.

average
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

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possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(b).

II.
Although
proceedings,

the
we

defendants

will

review

are
their

cross-appellants
contentions

in

in

these

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
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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
challenges

to

the

piracy offense.
challenge

the

the

evidentiary

sufficiency

of

the

issues,
evidence

each
as

to

defendant
the

§ 1651

Additionally, the defendants, except for Said,
sufficiency

of

the

9

evidence

on

the

offenses

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

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charged

in

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Count

One

Pg: 24 of 42

(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

to,

of,

furtherance

relation
a

of

crime

and

possessing

violence),

a

firearm

defendants

Jama

in
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.
269

(4th

Cir.

2015).

See United States v. Reed, 780 F.3d 260,
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).

10

A defendant

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).

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challenging

the

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sufficiency

of

Pg: 25 of 42

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 AK47 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

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property on board such ship” (alterations
internal quotation marks omitted));

and

●

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

charged

in

of

Counts

the
One

evidence
through

on

the

Three,

conspiracy

encompassing

offenses
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

that

alleged

the

defendants

26

conspired

to

commit

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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,

alternative offered to the jury.

there

was

no

commonsense

Although these defendants now

contend that they might have intended to make money by, for
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example, selling the seized ship, they did not argue such a
theory,

or

present

any

evidence

Indeed,

the

defense

focused

on

supporting

convincing

it,

the

at

jury

trial.

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.
U.S.C.

§ 2291(a)(9)

prohibited
performing

under
act

of

(criminalizing
paragraphs
violence

conspiracy

(1)

through

against

proscribed by paragraph (6)).

to

“do

(8),”

individual

on

See 18
anything
including

vessel,

as

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

defendants,

or

other

“[o]ne

acquiescence.”

personnel.

might

seize

Rather,
a

according

vessel

by

to

these

surprise

or

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.
28

While Farah drove the skiff

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into position, Jama attempted to load the RPG, and Cabaase fired
multiple
capture

rounds
the

from

AK-47

at

See

ship.”

his

J.A.

the

444.

Ashland
From

in

that

order

“to

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).
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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

society.”

decency

that

when

the

progress

of

a

maturing

Graham v. Florida, 560 U.S. 48, 58 (2010) (internal

quotation marks omitted).
only

mark

it

is

A punishment is cruel and unusual not

“inherently

barbaric,”

“disproportionate to the crime.”

but

also

Id. at 59.

when

it

is

Indeed, “[t]he

concept of proportionality is central to the Eighth Amendment.”
Id.
Here,

the

defendants

pursued

§ 1651’s mandatory life sentence.

as-applied

challenges

to

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 twoprong

test

for

assessing

an

proportionality of a sentence.

as-applied

challenge

to

the

Under prong one, a court must

determine whether a threshold comparison of “the gravity of the
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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.”
463

U.S.

at

296-97

(internal

quotation

marks

See Solem,

omitted).

The

Court further determined that “Helm has been treated in the same
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manner

as,

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or

more

severely

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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.
those

circumstances,

the

Court

See id. at 299-300.

concluded

that

Helm’s

In
life

sentence was “significantly disproportionate to his crime” and
“therefore prohibited by the Eighth Amendment.”
The

Solem

context

decision

of

capital

proportionality
rare.”

Id.

of
at

emphasized,
punishment,
particular

289-90

however,

that

successful
sentences

(alteration,

Id. at 303.
“outside

challenges

will

be

emphasis,

the

to

the

exceedingly
and

internal

quotation marks omitted).
Since Solem was decided, not a single “defendant before the
Supreme

Court

threshold

has

inference

capital case.

been
of

successful
gross

in

establishing

disproportionality”

See Cobler, 748 F.3d at 576.

even

in

a

a

non-

For example, in

Harmelin v. Michigan, 501 U.S. 957 (1991), the Court rejected an
as-applied
sentence

Eighth
in

a

Amendment

cocaine

challenge

possession

to

a

case.

mandatory
Justice

life

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)
32

(internal

quotation

marks

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omitted). 11

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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).
then

explained

one[,]

. . .

it

that,

although

reflect[ed]

a

11

Ewing’s
rational

sentence

was

legislative

The Court
“a

long

judgment,

Although 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 5960.
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)).

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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

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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.
Dowell,

771

F.3d

162,

167-69

See, e.g., United States v.

(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, 61214 (4th Cir. 1994) (life sentence for conspiracy to distribute
cocaine base).

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
12

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.

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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

disproportionality.

leads

to

an

inference

See Graham, 560 U.S. at 60.

of

gross

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

offenses were complete.

in

that

conduct,

their

piracy

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.

defendants’

conduct

violent

was

cocaine possession in Harmelin.

at

least

as

Indeed, the

severe

as

the

It is of no moment that no one

aboard the USS Ashland was harmed before the defendants’ attack
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was thwarted.
hand

the

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Cf. Dowell, 771 F.3d at 169 (“We reject out of

notion

considered

Pg: 37 of 42

that

the

nonviolent

sexual

merely

abuse

because

of

it

physical or life-threatening injuries.”).

a

does

child

be

lead

not

can

to

That is, “[t]he mere

fact that [the defendants’] acts of [violence] did not inflict
. . .

physical

injury

[to

the

Ashland’s

render [life sentences] disproportionate.”

personnel]

does

not

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.
government

has

helpfully

See Ewing, 538 U.S. at 30.
and

cogently

detailed

why

The

such

offense is sufficiently grave to merit life imprisonment.

an

Above

all, “for centuries, pirates have been universally condemned as
hostis humani generis — enemies of all mankind — because they
attack

vessels

nation’s

on

the

territorial

high

seas,

jurisdiction,

global commerce and navigation.”
F.3d

446,

454

(4th

Cir.

quotation marks omitted).

2012)

and
with

thus

outside

devastating

of

effect

any
to

United States v. Dire, 680
(alterations

and

internal

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.

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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.”
cl. 10.

U.S. Const. art. I, § 8,

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.
November

2010

trial

of

See J.A. 952-53 (expert testimony at

Dire

defendants).

Then,

“[i]n

2011,

armed Somali pirates attacked an estimated 3,863 seafarers and
took some 555 individuals hostage.”
782 F.3d 159, 162 (4th Cir. 2015).

See United States v. Beyle,
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
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global commerce, but
navigate the seas.
Id. (citation omitted).
vessels,

kidnapped,

also

Pg: 39 of 42

to

the

individuals

who

Victims of piracy are robbed of their

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-milliondollar 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.
14

See Cobler, 748 F.3d at 580.

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)).

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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,

convictions of the defendants.

we

affirm

the

various

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

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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
prison

who
as

participate
the

sole

in

such

offenses

conceivable

deserving

“rational”

of

life

punishment. *

in
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.
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not simply federal prosecutors) with discretion to fashion more
individualized

punishments

in

this

criminal justice.

42

small

corner

of

federal