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No. 14-4413
No. 14-4420
No. 14-4421
v.
MOHAMED FARAH, a/k/a Mahamed Farraah Hassan,
Defendant Appellant.
No. 14-4423
No. 14-4424
No. 14-4429
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:
KEENAN,
Decided:
Circuit
Judges,
and
DAVIS,
Senior
early
2010,
group
of
seven
Somalis
including
intending
to
seize
merchant
ship
at
sea.
Their
Undeterred
accomplices
launched
an
attack
on
the
USS
Ashland,
The
Ashland
responded
by
destroying
the
skiff
and
multiple
offenses,
U.S.C. 1651.
including
piracy
as
proscribed
by
18
that
such
sentences
prohibition
against
would
cruel
contravene
and
unusual
the
Eighth
punishment.
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,
By their cross-appeals
the
jury
instructions
with
respect
to
the
piracy
We deem
I.
A.
1.
In approximately February 2010, defendants Said, Jama, and
Cabaase
along
with
Jama
Idle
Ibrahim
and
three
others
rocket-propelled
grenade
launcher
(an
RPG),
to
more
swiftly
traverse
the
sea.
The
group
then
left
the
intercepted
afternoon
in
the
of
Gulf
February
of
Aden
27,
by
2010,
the
HMS
the
skiff
Chatham
of
was
the
The Somalis,
and
threw
weapons
and
their
ladder
overboard.
Those
to
boarding
team
that
had
been
dispatched
in
for
that
weapon
and
the
AK-47s.
The
boarding
team
also
Ibrahim, speaking as
the groups 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
one
of
the
skiffs
motors,
spray-painted
red
number
spray-painted
on
it
by
Royal
Navy
Ibrahim and Jama led the new mission, and Said was
next in command.
the
RPG
with
explosive
rockets. 4
When
the
skiff
was
scare [the crew], and then after that[,] capture the ship.
Id.
The encounter took place about forty nautical miles off the
targeted
ship
was
ship
the
United
of
actually
the
States
USS
Navy,
Ashland,
which
was
dock
then
Several
personnel
aboard
the
Ashland
namely,
Lieutenant
Brent
witnessed
the
Holloway,
Somalis
and
Gunners
attack
from
Mate
several
Justin
vantage
points, including near the warships aft, its mid-ship, and the
bridge.
Several
of
the
witnesses
saw
Cabaase
fire
multiple
towards
the
See,
front
right
over
the
bridge
of
the
USS
like
ricochet
on
the
side
of
the
boat.).
Indeed,
Bang, bang.
He
Id. at 153-54.
The
Mate
Myers
initially
left
his
remote
firing
times at the Ashland, Myers ran back to his duty station, where
he
controlled
25-mm
machine
guns
9
loaded
with
armor-piercing
incendiary shells.
him
Ashland.
to
see
that
Cabaase
was
directly
at
the
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
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
Ashlands crew about transporting refugees on a second larger
boat that had broken down before their return trip.
The Somalis
10
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
Virginia
at
Norfolk
returned
an
indictment
against
the
Those
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
11
Because
their
effort
to
seize
defendants
and
should
dismissed.
be
defendants
Ibrahim
and
the
Ashland
argued
granted
The
that
was
the
district
their
unsuccessful,
1651
court
motion
on
piracy
agreed
August
the
charge
with
17,
the
2010,
On August 27,
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.
firearm
discharging
of
the
1651
piracy
charge.
Following
an
oral
governments
decision
in
appeal
United
States
in
v.
abeyance
Dire.
pending
The
Dire
argument
and
appeals
were
piracy
for
warship.
their
attack
on
the
USS
Nicholas,
another
Navy
in the Indian Ocean, but their plan was foiled by the Nicholass
crew.
Like the defendants here, the Dire defendants argued that
1651 requires a robbery i.e., seizing or otherwise robbing a
vessel.
162
(1820),
where
the
Court
indicated
that
it
had
no
an
1819
act
of
Congress,
the
Smith
decision
of
1820
That is, we
Id. at 468-
definition
of
piracy
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)
(B)
(C)
definition
from
the
substantively
identical
Geneva
The very day we decided Dire that is, May 23, 2012
14
in Dire.
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
Ibrahims
evidence
supporting
those
additional
counts.
The
15
solely
with
the
attack
of
aiding
and
on
the
Ashland,
and
Count
Nine
pursuant
to
18
U.S.C.
2(a).
Defendants Said, Jama, and Cabaase were named in all ten
counts of the operative indictment.
defendants
again
moved
to
dismiss
the
1651
piracy
charge
defendants
trial
began
in
Norfolk
on
February
19,
HMS
Chatham
defendants.
and
the
during
their
encounters
in
2010
with
the
prosecutors
used
his
testimony
to
establish
several
began
piracy activities.
by
explaining
how
he
became
involved
in
J.A. 360.
That
group forcibly seized a Danish ship called the CEC Future, using
assault weapons and a ladder.
J.A. 365.
17
In February 2010, he
Id. at
Id.
personnel.
the
USS
Ashland
and
their
apprehension
by
its
the
defendants
moved
for
witnesses.
The
judgments
of
acquittal.
The
defendants
objected
to
the
courts
principles
recognized
and
applied
in
Dire.
The
court
18
of
February
28,
2014,
the
district
court
granted
the
motion.
The Eighth Amendment Order concluded that life sentences in
the
circumstances
of
this
prosecution
analysis
by
recognizing
the
would
contravene
the
Courts
two-prong
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.
Id.
If
that
analysis
confirms
that
the
sentence
is
grossly
Id.
upon
comparing
the
proposed
life
sentences
with
the
The court
offenses
See
were
more
properly
characterized
as
Id.
satisfied
prong
The
one
court
of
concluded
the
that
Eighth
the
defendants
Amendment
analysis
had
by
Id. at 12.
court
punishing
criminal
observed
recidivist
statutes
that,
with
offenders,
carrying
the
almost
mandatory
20
exception
of
statutes
of
the
federal
minimum
life
sentence
all
. . .
involve
the
death
of
another
person.
See
Eighth
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.
In his
The defendants, by
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
21
II.
Although
proceedings,
the
we
defendants
will
review
are
their
cross-appellants
contentions
in
in
these
the
first
By their appeals,
The defendants
judgments
of
acquittal,
arguing
that
the
evidence
was
is
limited
to
robbery
at
sea.
Nevertheless,
the
to
the
piracy offense.
challenge
the
the
evidentiary
sufficiency
of
the
issues,
evidence
each
as
to
defendant
the
1651
of
the
evidence
on
the
offenses
23
charged
in
Count
One
(conspiracy
to
commit
hostage
taking),
and
furtherance
in
relation
to,
of,
of
crime
and
possessing
violence),
firearm
defendants
Jama
in
and
(4th
Cir.
2015).
reviewing
evidence
sufficiency
of
the
crime
charged
beyond
reasonable
doubt.
United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014)
(emphasis and internal quotation marks omitted).
10
A defendant
24
challenging
the
sufficiency
of
the
evidence
faces
heavy
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
following:
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
25
and
Accordingly,
we
are
well
satisfied
that,
on
the
evidence
doubt
that
each
of
the
defendants
committed
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.
indictment
that
alleged
the
defendants
26
conspired
to
commit
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
for
ransom.
Tellingly,
there
was
no
commonsense
contend that they might have intended to make money by, for
27
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
the
defendants
conspired
to
perform
an
act
of
violence
2291(a)(9)
prohibited
performing
under
act
of
(criminalizing
paragraphs
violence
conspiracy
(1)
through
against
to
do
(8),
individual
on
See 18
anything
including
vessel,
as
contend that their mere intent to seize a ship does not also
prove an intention to perform an act of violence against the
ships
crew
defendants,
or
other
[o]ne
acquiescence.
personnel.
might
seize
Rather,
a
according
vessel
by
to
these
surprise
or
into position, Jama attempted to load the RPG, and Cabaase fired
multiple
capture
rounds
the
from
ship.
his
AK-47
at
See
J.A.
444.
the
Ashland
From
in
that
order
to
evidence,
III.
Having
resolved
each
defendants
appeal
against
him,
we
Order.
The
government
contends
that
the
court
prohibition
against
cruel
and
unusual
punishment.
We review
A.
We begin our consideration of the governments appeal by
identifying
the
controlling
legal
framework.
The
Eighth
In deciding whether a
of
society.
decency
that
when
the
progress
of
maturing
mark
it
is
inherently
barbaric,
but
also
Id. at 59.
when
it
is
Indeed, [t]he
the
defendants
pursued
as-applied
challenges
to
its Eighth Amendment Order, the Supreme Court has adopted a twoprong
test
for
assessing
an
proportionality of a sentence.
as-applied
challenge
to
the
gross
disproportionality.
See
Graham,
560
U.S.
at
60
If prong one is
Under
the
sentences
received
by
other
offenders
in
the
same
jurisdiction and with the sentences imposed for the same crime
in other jurisdictions.
Id.
sentence
is
cruel
and
unusual.
Id.
(alterations
and
Supreme
Court
has
on
one
occasion
in
its
Solem
disproportionate.
There,
the
recidivist
defendant
U.S.
at
296-97
(internal
quotation
marks
See Solem,
omitted).
The
Court further determined that Helm has been treated in the same
31
manner
as,
or
more
severely
than,
criminals
[in
the
same
circumstances,
the
Court
concluded
that
Helms
In
life
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
Court
threshold
has
inference
capital case.
been
of
successful
gross
in
establishing
disproportionality
even
in
non-
For example, in
Eighth
in
Amendment
cocaine
challenge
possession
to
case.
mandatory
Justice
life
Kennedy
concurring
in
the
judgment)
32
(internal
quotation
marks
omitted). 11
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
Californias three strikes law for stealing $1,200 worth of
golf clubs.
Court observed that the theft offense was certainly not one of
the most passive felonies a person could commit.
See Ewing,
explained
one[,]
. . .
it
that,
although
reflect[ed]
11
Ewings
rational
sentence
was
legislative
The Court
a
long
judgment,
33
Id. at 30.
We explained:
noting
the
singularity
of
the
Supreme
Courts
Solem
34
this
Courts
decisions. 12
Significantly,
we
have
not
771
F.3d
162,
167-69
(4th
Cir.
2014)
(eighty-year
Career
Criminal
Act
for
being
felon
in
possession
of
35
B.
With the foregoing legal framework in mind, we assess the
governments challenge to the defendants non-life sentences for
their
1651
piracy
offenses.
Prong
one
of
the
applicable
proposed
life
sentences
disproportionality.
leads
to
an
inference
of
gross
The defendants
included
committing
illegal
acts
of
violence
for
the
defendants
engaged
in
that
conduct,
their
piracy
defendants
conduct
violent
was
at
least
as
Indeed, the
severe
as
the
aboard the USS Ashland was harmed before the defendants attack
36
was thwarted.
hand
the
notion
considered
that
the
nonviolent
sexual
merely
abuse
because
of
it
does
child
not
can
be
lead
to
physical
injury
[to
the
Ashlands
personnel]
does
not
See id. 13
legislative
judgment,
entitled
to
deference,
that
has
helpfully
cogently
detailed
why
The
such
an
Above
vessels
nations
on
the
territorial
high
seas,
jurisdiction,
446,
454
(4th
Cir.
2012)
and
with
thus
outside
devastating
of
effect
any
to
and
internal
37
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.
The
2010
trial
of
Dire
defendants).
Then,
[i]n
2011,
kidnapped,
also
to
the
individuals
who
held
hostage,
and
even
tortured
and
[the
defendants]
offenses
and
the
severity
of
[their
39
IV.
Pursuant
to
the
foregoing,
we
affirm
the
various
40
my
agreement
with
one
thoughtfully-expressed
and
who
as
participate
the
sole
in
such
offenses
conceivable
deserving
rational
of
life
punishment. *
in
The
about
severe,
but
non-capital,
criminal
punishments,
our
punishments
in
this
criminal justice.
42
small
corner
of
federal