Argued January 29, 2015
Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. (2:11-cr-00034-RBS-DEM-2; 2:11-cr-00034-RBS-DEM-3). Rebecca Beach Smith, Chief District Judge.
James Ellenson, LAW OFFICE OF JAMES STEPHEN ELLENSON, Newport News, Virginia; Lawrence Hunter Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for Appellants.
Benjamin L. Hatch, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Dana J. Boente, United States Attorney, Alexandria, Virginia, Joseph E. DePadilla, Assistant United States Attorney, Norfolk, Virginia, Brian J. Samuels, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Judge Wilkinson wrote the opinion, in which Judge Gregory and Judge Shedd joined.
WILKINSON, Circuit Judge.
Appellants Abukar Osman Beyle and Shani Nurani Shiekh Abrar were each convicted on twenty-six criminal counts arising from the armed abduction and murder of four U.S. citizens off the coast of Somalia. Beyle and Abrar were part of a group of nineteen pirates who seized a yacht and captured the four Americans on board. The pirates headed for Somalia, but were intercepted by the United States Navy. During a final confrontation with the Navy, Beyle, Abrar, and another pirate shot and killed the four American hostages. The Navy secured the boat and apprehended the surviving pirates, who were transported to the United States to face criminal charges. After a weeks-long trial, a jury convicted Beyle and Abrar on all counts, and each defendant received multiple life sentences.
Beyle and Abrar now challenge their respective convictions on separate grounds. Beyle argues that the district court lacked jurisdiction over the murder and firearms charges against him because the Americans were not killed on the " high seas." Abrar, who maintains that he was kidnapped before the piracy operation, contends that he was unable to present certain witnesses who could have corroborated his duress defense. We conclude,
however, that the site of the murders, thirty to forty nautical miles from the Somali coast, lay on the high seas and thus beyond the territorial sea of any nation. We further conclude that Abrar was not denied his Fifth Amendment right to due process or his Sixth Amendment right to present witnesses material to his defense. The district court gave each of the defendants the fair trial that he deserved, and we affirm in all respects its judgment.
In reviewing defendants' convictions by a jury, we consider the evidence in the light most favorable to the government. Evans v. United States, 504 U.S. 255, 257, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); see United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc).
The 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. See The White House, United States Counter Piracy and Maritime Security Action Plan annex A at 1 (June 2014); U.N. S.C. Rep. of the Sec'y-Gen. on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia, U.N. Doc. S/2014/740 (Oct. 16, 2014). Piracy poses a threat not only to the free flow of global commerce, but also to the individuals who navigate the seas. In 2011, armed Somali pirates attacked an estimated 3,863 seafarers and took some 555 individuals hostage. Oceans Beyond Piracy et al., The Human Cost of Maritime Piracy, 2012, at 3 (2013). Thirty-five of those hostages were killed. Id. at 7.
This case arises from one such attack. In early February 2011, a group of pirates, with the assistance of several investors and facilitators in Somalia, prepared to hijack a ship at sea. The investors provided a primary " mothership" for the voyage, as well as an attack skiff that the pirates would use to launch fast-moving assaults on their targets. The mothership, the Alqasim, was a captured Yemeni fishing boat, and four Yemeni fishermen on board were forced to operate the boat for the pirates. All of the pirates were Somali, except for one, another Yemeni fisherman who had been captured by Somali pirates but then decided to join their ranks. Among their supplies, the nineteen men brought various automatic firearms and a rocket-propelled grenade launcher.
Beyle and Abrar were part of this cohort. Beyle assisted with acquiring an outboard motor for the attack skiff. Abrar brought an AK-47 aboard the boat. One of the pirates drew up a list of the individuals who had participated in the mission, to allocate any eventual ransom shares. Both Beyle and Abrar were on the list. The four captive Yemeni fishermen from the Alqasim were not.
The pirates set to sea on February 9, 2011. During their first nine days, they made a number of unsuccessful efforts, including chasing a large container ship. In at least one such attempt, Abrar carried the rocket-propelled grenade launcher.
On February 18, 2011, the pirates spotted a new target: a U.S.-flagged sailboat with four U.S. citizens aboard. The Americans had been sailing in the Arabian Sea as part of an international yacht rally, traveling a leg from India to Oman. Two of them, Scott Adam and Jean Adam, were husband and wife and owned this vessel, known as the Quest. The other two Americans
were Phyllis Macay and Robert Riggle, who were friends of the couple.
Six of the pirates, including Beyle and Abrar, boarded the attack skiff. They moved swiftly to hijack the Quest and take the four Americans hostage. As the skiff approached, Beyle fired an AK-47 into the air. Once on board, Abrar first subdued the two women, and he then cut the boat's communication lines. At the time the pirates gained control, the nearest land was Oman or Yemen, approximately four hundred miles away. The pirates had traveled 940 to 960 miles from the Somali coast.
With the Quest secured, the remaining pirates took the supplies from the mothership and crowded onto the fifty-eight-foot-long Quest. They released the four Yemeni captives, who departed in the Alqasim. The nineteen pirates then set a course for Somalia. They intended to hold the Americans hostage on land and work through their coconspirators to secure a ransom. The Americans were kept primarily in a horseshoe-shaped bench area around the helm. Beyle and Abrar were among the men assigned to guard the Americans, with guns ready. After hijacking the Quest, the pirates also used the Americans' cellular telephones to take photographs and record videos. Several pirates put on clothing belonging to their victims, and Abrar can be seen wearing a hostage's sunglasses and smiling.
The U.S. Navy was soon alerted to the attack, and a carrier strike group moved to intercept the Quest. After locating the boat, which was still hundreds of miles into the Indian Ocean, the Navy established radio communications with the pirates and began following the Quest as it proceeded to Somalia. The Navy's objective was to stop the Quest from entering Somali territorial waters and to secure the hostages' safe release. Claiming they lacked any negotiating authority, however, the pirates demanded that they be allowed to reach Somalia and engage in hostage negotiations through an interlocutor on land. The Navy made clear to the pirates that they would not be permitted to take the hostages to Somalia. But time was running short: the pirates were on pace to reach Somalia within days. At one point during these exchanges, Abrar fired an AK-47 into the air above Scott Adam, as a warning to the Navy. The pirates variously threatened to kill the hostages and themselves.
On February 22, 2011, the Navy directed the pirates to stop proceeding toward Somalia. The Navy was determined to keep the Quest in international waters and prevent it from entering Somali territorial waters. But the pirates refused. The Navy began maneuvering to block the boat and informed the pirates that these movements were peaceful. One pirate answered, " I will eat them like meat." J.A. 384.
Suddenly, another pirate fired a rocket-propelled grenade toward the USS Sterett, the Navy destroyer that had been following the Quest most closely. The rocket missed and splashed into the water, between the Sterett and a set of smaller boats carrying Navy SEALs. Bullets from the Quest began whizzing over the Sterett, but the Navy did not return fire. At that point, a group of three pirates -- Beyle and Abrar, together with Ahmed Muse Salad, also ...