Piracy convictions, unheard of in nearly two centuries, upheld by court

The first piracy convictions— not the music-downloading kind of pirates, but the actual seafaring, ship-raiding sort of pirates—in the United States in 190 years were upheld by the 4th U.S. Circuit Court of Appeals on May 23.

On the same day the court upheld all five convictions, it also reversed the dismissal of another set of piracy charges.

Three of the defendants, all Somali nationals, thought they had spotted a vulnerable merchant ship in the early morning hours of April 1, 2010 off the coast of Somalia. The pirates, sailing a small skiff, attacked the ship with light arms.

What they had actually spotted was the USS Nicholas, a Navy frigate armed with missiles and torpedoes, in the Indian Ocean to conduct anti-piracy missions. Their attack lasted about thirty seconds, with predictable results: the Nicholas captured the three men, sunk their skiff and chased down and captured a nearby “mother ship,” seizing the remaining two defendants. No American sailors were harmed.

Once aboard the ship, the defendants confessed to participating in a scheme to hijack a merchant vessel and hold it for ransom, providing details about their planned operation. According to the opinion, the Nicholas had been lit to disguise itself as a merchant vessel.

The defendants were transported to the Eastern District of Virginia, where they were convicted of piracy and 12 other counts. The court sentenced all five to life sentences, plus an additional 80 years. They appealed, arguing that their “fleeting and fruitless” attack on the Nicholas did not amount to a piracy offense as defined under the federal statute because it was unsuccessful—they boarded the Nicholas only as captives and took no property.

The appeals court scuttled that argument, finding that a defendant did not have to rob or seize a ship in order to have committed piracy.

“The defendants would have us believe … the United States’ proscription of general piracy has been limited to ‘robbery upon the sea.’ But that interpretation of our law would render it incongruous with the modern law of nations and prevent us from exercising universal jurisdiction in piracy cases,” Judge Robert King wrote for a unanimous court.

The court said that the attack on the USS Nicholas was consistent with an accustomed pattern of Somali pirate attacks. In 2009, a U.S. merchant ship was hijacked and held for ransom by Somali pirates before being freed by the U.S. Navy. Much of the country is controlled by militias and beyond the reach of any government.

King also ruled in a separate case involving five other Somali nationals who attacked the USS Ashland. In that case, the District Court had granted the defendant’s motions to dismiss piracy charges based on similar theories. The appeals court vacated that decision and remanded the case for trial.

The case involving the attack on the Nicholas is United States v. Dire. The case involving the attack on the Ashland is United States v. Said. The full text of both opinions is available at sclawyersweekly.com.