Shibin files appellate brief

On December 13, Mohammad Shibin filed an Appellate Brief with the Fourth Circuit Court of Appeals. Shibin was charged with eight crimes, comprising fifteen separate counts, for his alleged role as a hostage negotiator in the hijackings of the Marida Marguerite, a German merchant vessel manned by foreign nationals, and the S/V Quest, an American sailing vessel with Americans on board. At trial, Shibin was convicted of all fifteen counts and sentenced to multiple life sentences plus 120 months in prison.

This post will offer a brief summary of the defendant’s arguments followed by even briefer commentary concerning the plausibility of those arguments. On balance, Shibin may have earned himself a retrial on a couple of issues, but he is highly unlikely to escape punishment altogether.

Mohammad Shibin shortly after his arrest.

Shibin’s first argument on appeal is that the two counts of piracy under 18 U.S.C. §§ 1651 and 2 should be dismissed because, “[i]n what could be characterized as almost indifference to this essential requirement, the government failed to present any evidence that Shibin had at any point committed any act upon the high seas whatsoever” (emphasis in original). In support of this argument, Shibin advances the plain language of § 1651, the legislative history of §§ 1651 and 2, prior lower court opinions on the issue, and customary international law as found in the Harvard Draft Convention and the Geneva Convention on the High Seas. These sources, according to the defendant, all suggest that universal jurisdiction over piracy only exists for those acts committed on the high seas or outside the territorial jurisdiction of any state, and that § 1651 only purpose is to criminalize those extraterritorial acts.

I have written a great deal about this argument in the past, and rather than re-hash it all here, I’ll direct readers to this EJIL Talk post and to other on CHO. I will add, however, that I agree that using § 2 to provide for universal jurisdiction over facilitators who act from with a single nation’s territory is impermissible under the Charming Betsy Canon. Ultimately, though, this is an issue that has yet to be fully litigated, so it is anyone’s guess how it will come out in the end.

Second, Shibin advances the ambitious argument that all counts should be dismissed because Shibin was improperly brought before the U.S. courts. Shibin rightly notes that a pair of Supreme Court cases, Frisbie v. Collins and Ker v. Illinois, stand for the proposition that “the power of the court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a forcible abduction.” The Ker-Frisbee doctrine has been endorsed in the face of extradition treaties that were was silent on the propriety of forcible abductions in, inter alia, U.S. v. Alvarez Machainand Kasi v. Angelone. Shibin seeks to distinguish his case by noting that the United States and Somalia do not have an extradition treaty. The lack of such a formalized agreement, according to the defendant, signals the Somali government’s unwillingness to allow foreign officials’ access to their citizens.

This argument seems likely to fail with respect to the Marida Marguerite and will almost certainly fail regarding the Quest. In Alvarez Machain, the Court essentially held that silence as to the propriety of forcible transfers renders American courts unwilling to look into the legality of such transfers. This logic seems to suggest that U.S. courts view the right not to be forcibly brought before a U.S. court as a right that a foreign government must affirmatively assert on behalf of its citizens. Somalia’s silence on the matter is therefore likely to be interpreted in a similar fashion, whether or not that silence comes in the context of an extradition treaty.

The third argument advanced by the defendant is that all of the non-piracy offenses charged in connection to the Marida Marguerite should be dismissed because they are not crimes of universal jurisdiction. These counts include hostage taking and conspiracy to commit hostage, conspiracy to commit violence against maritime navigation and committing violence against maritime navigation, conspiracy to commit kidnapping and kidnapping. Shibin finds support for this argument in U.S. v. Yousef, 327 F.3d 56 at 104 (holding that universal jurisdiction crimes cannot be created judicially, by analogy, or through references to aspirational treaties or scholarly works).

However, this argument ignores the same Charming Betsy Canon upon which the defendant relies in support of his piracy charges. The Charming Betsy Canon states that statutes should not be construed as to violate the law of nations unless Congress manifests its intent to do so. However, 18 U.S.C. § 1203 (hostage taking), 18 U.S.C. § 2280 (violence against maritime navigation), and 18 U.S.C. § 1201 (kidnapping) all contain “found in” or “brought before” provisions stating that the United States shall have jurisdiction over those individuals who are later found in the United States or brought before a U.S. court. Thus Congress provides for some form of qualified universal jurisdiction over hostage taking, violence against maritime navigation, and kidnapping that arguably violates international law. Nevertheless, there is no shortage of precedent stating that courts will uphold such statutes if Congress’ intent is clear. It must be said, tough, that none of this precedent concerns a defendant with no traditional connection to the United States whatsoever, as is the case with Shibin’s charges stemming from the Marida Margueritte.

Finally, Shibin challenges the testimony of an FBI agent concerning a translated interview between that agent and Muhamud Salad Ali, one of the individuals who captured the Quest. Shibin argues that the facts surrounding the translation are such that the translator created an additional level of hearsay, and the translator’s absence from trial constitutes a violation of the Federal Rules of Evidence and the Confrontation Clause. In support of his argument, Shibin relies on a four-part test announced in the Fifth Circuit in U.S. v. Martinez-Gaytanand adopted by the Fourth Circuit in U.S. v. Vidacak. At issue in these cases was whether the translator should be considered an out of court declarant or a mere conduit of the in court witness. The four factors to be considered are: 1) which party supplied the translator; 2) whether the translator had a motive to fabricate; 3) the translator’s qualifications and skills, and; 4) whether actions taken subsequent to the translation were consistent with the statement translated.

According to Shibin, three of the four factors mitigate in favor of requiring the translator’s presence in court for examination. First, the FBI agent in question described the translator as “an FBI Somali linguist,” suggesting that the government supplied the translator. The second factor – potential motive to fabricate – is neutral, as there is no evidence suggesting bias. Third, there is no basis to determine the translator’s skill, as nobody but the prosecution had access to him or her. Finally, Mr. Salad Ali’s testimony in court directly contradicted that which came out of the earlier translated interview. On balance, Shibin argues, the nature of this particular translation created an additional layer of hearsay that can only be remedied through a re-trial of which the Somali translator would need to be a part.

This argument seems plausible on its face, assuming the facts and the law are as the defense brief says they are. Without more research or access to the government’s yet-to-be-filed brief, it is impossible to predict the outcome of this particular argument. I will note, however, that Shibin makes a Confrontation Clause argument that he says should stand regardless of the outcome of the hearsay argument. It seems to me, however, that the hearsay argument and Confrontation Clause argument will rise or fall together. If the translator is deemed a mere conduit of Mr. Salad Ali, the latter of whom was available for confrontation, it would be difficult to argue that the translator’s translation was testimonial.