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Robbery Not Element of ‘Piracy’ Crime

The 4th Circuit upholds piracy convictions of five Somali nationals under 18 U.S.C. § 1651, even though they did not seize or rob the U.S. Navy vessel in the Indian Ocean off the coast of Africa, but only boarded as captives.

Defendants imprudently launched an attack against the USS Nicholas, having confused the mighty Navy frigate for a vulnerable merchant ship. They were brought to Virginia federal court, where they were convicted of piracy and other crimes. On appeal, they argue the crime of piracy has been narrowly defined for purposes of § 1651 as robbery at sea, i.e., seizing or otherwise robbing a vessel. Because they boarded the Nicholas only as captives and indisputably took no property, they challenge their convictions on the piracy count.

The district court opinion allowing defendants’ piracy conviction came on the heels of a published opinion in U.S. v. Said, 747 F. Supp. 2d 554 (E.D. Va. 2010), in which a different judge of the Eastern District of Virginia essentially took these defendants’ view of the piracy offense by recognizing a robbery element, and dismissed the piracy count in the prosecution of a second group of Somali nationals.

The district court in the instant case astutely traced the meaning of “piracy” under the law of nations, from the time of the Act of 1819 to the modern era and the crime’s codification at 18 U.S.C. § 1651.

At bottom, defendants’ position is irreconcilable with the non-controversial notion that Congress intended in § 1651 to define piracy as a universal jurisdiction crime. We agree with the district court that § 1651 incorporates a definition of piracy that changes with advancements in the law of nations. We also agree with the district court that the definition of piracy under the law of nations, at the time of defendants’ attack and continuing today, had for decades encompassed their violent conduct. That definition, spelled out in the United Nations Convention on the Law of the Sea, 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.

Because the district court correctly applied the UNCOLS definition of piracy as customary  international law, we reject defendants’ challenge to their piracy convictions as well as their mandatory life sentences.

This court also rejects defendants’ claims that they were not adequately advised of Miranda rights and that the government failed to establish that one of the defendants was at least 18 years old.

Convictions and sentences affirmed.

U.S. v. Dire (King) No. 11-4310, May 23, 2012; USDC at Norfolk, Va. (Davis) James R. Theuer, Jon M. Babineau, David W. Bouchard for appellants; Benjamin L. Hatch, AUSA, for appellee. VLW 012-2-119, 57 pp.

VLW 012-2-119

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