Oral Argument in U.S.S. Nicholas Piracy Case

[Kevin Walsh is Assistant Professor of Law at the University of Richmond School of Law]

The United States Court of Appeals for the Fourth Circuit heard arguments this week in the second of two pirate prosecutions in federal court in Norfolk, Virginia. The first appeal, which the court heard in the spring, has been held up on a procedural issue and is being stayed pending the decision of this week’s consolidated appeals. This second appeal–United States v. Abdi Dire (the lead case, together for argument with four other appeals)–was the second argued this week in the Red Courtroom on the fourth floor of the Lewis F. Powell, Jr. Courthouse in Richmond. These appeals arise out of the convictions, after trial, of five Somali pirates for their attack on the U.S.S. Nicholas (preview post here). (For an AP write-up of the argument, see here.)

The panel that heard arguments was the same panel that heard arguments in the appeal arising out of the U.S.S. Ashland prosecution: Judge King, Judge Davis, and Judge Keenan.

Appellants divided their argument among three lawyers, each of whom addressed a distinct issue: whether the facts proven amounted to piracy under the law of nations; whether certain statements made by the captured pirates should be suppressed; and whether three 924(c) counts should be merged for sentencing.

The panel did not ask the first appellants’ lawyer many questions about the definition-of-piracy issue. Judge Davis expressed some skepticism about counsel’s argument that the Congress that adopted the statute criminalizing piracy as defined by the law of nations intended to adopt a fixed snapshot definition as of the time of enactment. Judges Davis and King pressed counsel for authorities on this “immutability” issue.

With respect to suppression, Judge King pressed counsel to acknowledge that appellants were not challenging as clear error District Judge Davis’s factual finding that one of the questioning agents informed the interrogees, through an interpreter, “If you want a lawyer, we will give you one.” Counsel answered that appellants were challenging District Judge Davis’s ultimate legal conclusions regarding suppression because he failed to assign enough weight to other aspects of the questioning, such as the Somalis’ lack of education and the interpreter’s statement that he did not recall interpreting Miranda warnings like one sees on television.

On the 924(c) merger issue, counsel for appellants apparently piqued the panel’s interest in the need to address, at some point, how to decide what constitutes a distinct unit of prosecution. But in response to Judge Davis’s question about whether the defense had requested a special verdict on the 924(c) counts, counsel responded that they had not. Judge King also noted that winning on the 924(c) issue would not matter if the appellants lost on Count I (the piracy issue).

Counsel for the United States opened by discussing the facts of the attack and emphasizing the humane treatment of the captured pirates. The first question–asked by Judge Davis–was about the 924(c) issue. Argument did not turn to the definition-of-piracy issue until more than halfway through the allotted time. None of the judges evinced significant skepticism of the government’s arguments on this issue. There was a brief discussion of the Alkolac decision handed down yesterday (previously covered here). With respect to the suppression question, there was a brief interchange about whether the government was required to provide Miranda warnings for questioning of the captured pirates when questioned on board the USS Nicholas; counsel responded that the government did so to avoid the need to put the court to the test of deciding whether Miranda warnings were required.

Appellants’ brief rebuttal addressed the 924(c) and definition-of-piracy issues, including a discussion of Alkolac.

While it is always dangerous to infer too much from observing arguments, the questioning did not seem to reveal a panel prepared to reverse. Prediction: Unanimous vote to affirm.