Ninth Circuit decides that U.S. has criminal jurisdiction over foreign national who, in act of piracy, seized control of foreign vessel on high seas but was intercepted by U.S. authorities (1) under international law principle of universal jurisdiction over piracy not requiring nexus between offender and U.S. and (2) under federal law granting jurisdiction if individual later ends up in U.S.
The Captain and First Mate of the Full Means No. 2, a Taiwanese vessel, had long been harassing and abusing Lei Shi (Defendant), the cook. One day, Defendant had had enough and murdered both harassers. Defendant then took control of the vessel and ordered the Second Mate to take it to China. After two days, the crew overpowered Defendant and locked him in a storage compartment. Not having heard from his vessel in several days, the owner asked the U.S. Coast Guard for help.
A Coast Guard cutter soon intercepted the vessel about 60 miles off Hilo, Hawaii. John Fu, a Chinese speaking officer boarded the vessel and came upon Defendant inside the compartment. Before receiving any Miranda warnings, Defendant admitted that he had killed the Captain and the First Mate. Eventually, FBI agents boarded the vessel and arrested Defendant for violating 18 U.S.C. Section 2280; it criminalizes acts of violence that endanger maritime navigation.
The statute codifies the U.S.'s obligations under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 27 I. L. M. 672 (1988) [in force for U.S. March 6, 1995]. The Convention authorizes any signatory state to extradite or prosecute offenders, regardless of where the acts took place . Section 2280 also provides for federal jurisdiction over any offender who is later found in the U.S.
The agents also uncovered several incriminating letters that Defendant had written. During later questioning in Hawaii, Defendant again confessed to the murders. The government charged Defendant with violating Section 2280. The district court concluded that it had jurisdiction over Defendant. A jury found him guilty, and he appealed. The U.S. Court of Appeals for the Ninth Circuit upholds federal jurisdiction here and affirms the conviction.
"At issue here is the provision of Section 2280 which renders jurisdiction proper if the "offender is later found in the United States.' Id. Section 2280(b)(1)(c). The district court concluded that Section 2280 provided it with jurisdiction over Defendant because Defendant's arrest and transport to Honolulu rendered him "later found' in the United States as the statute defines that term."
"Article I, Section 8, Clause 10 of the U.S. Constitution ... empowers Congress to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.' Because the high seas, by definition, lie outside U.S. territory, ..., the ... Clause grants Congress the authority to apply federal law beyond the borders of the United States, EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)."
"Section 2280 is an exercise of Congress's constitutional authority to define and punish "Felonies on the high Seas' because it proscribes felony offenses and expressly applies to international waters. ... In addition, Sections 2280(a)(1)(A) and (B), the provisions under which Defendant was charged, proscribe offenses that meet the definition of piracy. "Piracy' traditionally has been defined as "robbery, or forcible depredations upon the sea.' United States v. Smith, 18 U.S. 153, 161 (1820). ..." "Section 2280(a)(1)(A) prohibits "seiz[ing] or exercis[ing] control over a ship by force or threat thereof,' and Section 2280(a)(1)(B) prohibits "act[s] of violence against a person on board a ship' that are "likely to endanger the safe navigation of that ship.' Because such offenses involve interference with property on the open sea through the use of force, they are within Congress's power to define and to punish crimes of piracy. ..."
"In addition to the Offense Clause, Congress derived the authority to promulgate Section 2280 by virtue of the Necessary and Proper Clause. That Clause empowers Congress "to make all Laws which shall be necessary and proper for carrying into execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' U.S. Const. art. I, Section 8, cl. 18. Such "Powers' include the Executive's Article II Treaty Power." [Slip op. 7 8]
The Court then addresses whether Congress really intended the law to apply extraterritorially. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993). Here, Section 2280(b)(1) purports to apply to "covered ships;" it defines them as ships "navigating or . . . scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single country," 18 U.S.C. Section 2280(e). Furthermore, the law extends federal criminal jurisdiction over acts committed on such ships if "the offender is later found in the United States." Id. Section 2280(b)(1)(c).
Defendant further claims that applying Section 2280 to his case violates the Due Process Clause of the Fifth Amendment. In United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990), the Ninth Circuit held that, when a U.S. court applies the Maritime Drug Law Enforcement Act (MDLEA) to a foreign defendant on a foreign ship, due process requires "a sufficient nexus between the defendant and the U.S., so that such application would not be arbitrary or fundamentally unfair." Davis, supra, at 249 50. The Defendant here, however, fails to persuade the Court that the law demands such a nexus in this case.
In United States v. Caicedo, 47 F.3d 370 (9th Cir. 1995), however, the Court noted that "[a] nexus requirement, imposed as a matter of due process, makes sense when the "rough guide' of international law also requires a nexus.' Id. at 372. Here, the international law principle of Universal Jurisdiction allows the state in which the offender turns up to punish for offenses against all states. This is true even if the offensive acts took place elsewhere and even if the offender has no link to the forum state other than physical presence there.
Here, Defendant committed acts that constituted piracy. Thus, due process does not require the same nexus between the offender and the U.S. as the MDLEA does. Further, Section 2280 also implements the Maritime Safety Convention, above; it expressly provides for the prosecution of foreign offenders.
Finally, Defendant argued that jurisdiction was improper because the U.S. agents had taken him to the U.S. against his will. The appellate court is not persuaded. The D.C. Circuit held in United States v. Rezaq, 134 F. 3d 1121 (D.C. Cir. 1998), that the requirement of the anti hijacking statute that the government "afterwards found" defendant in the U.S. simply means that the highjacker is physically located in the U.S. The Ninth Circuit follows this interpretation in the present case as applied to Section 2280.
This also harmonizes with the Ker Frisbie rule: "It is well established that jurisdiction over a defendant is not impaired by the fact that he was brought within the jurisdictional territory of the court against his will. See Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436 (1886)." [Slip op. 14].
Citation: United States v. Shi, 2008 WL 1821373; No. 06 10389 (9th Cir. April 24, 2008).
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