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Eastern District of Virginia Judges Interpret Piracy Statute in Conflicting Opinions

In the United States District Court for the Eastern District of Virginia, two (2) recent cases have been decided that provide conflicting interpretations of the meaning of "piracy" under 18 U.S.C. 1651. This statute states, "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." The law of nations refers to customary international law regarding the actual definition of piracy.

In United States v. Mohamed Ali Said, 10-cr-57 (E.D. Va. Aug. 17, 2010), District Judge Jackson held that the U.S. Supreme Court's decision in United States v. Smith, 18 U.S. 153 (1820), was controlling in finding that piracy, under customary international law, is robbery or forcible depredations on the high seas. In reaching its conclusion, the Court examined many international sources and determined that the definition of piracy in the international community was both unclear and inconsistent with Congress' understanding of the piracy statute as interpreted by the Supreme Court in Smith. The Court reasoned that because the international sources were inconsistent, it had to rely on the Supreme Court's determination of what constitutes piracy in Smith. Accordingly, the court dismissed the piracy indictment against the defendants, finding that the government had failed to establish any acts of violence or aggression committed on the high seas that actually constituted piracy under the piracy statute as interpreted by the Supreme Court in Smith.

Four (4) months later, in United States v. Mohammed Modin Hasan, 10-cr-56 (E.D. Va. Oct. 29, 2010), District Judge Davis issued a ninety-eight (98) page decision ruling, in sum and substance, that piracy need not be successful to be prosecuted. In reaching his decision, the Judge found that the definition of piracy contained in the United Nations Convention on the Law of the Sea (UNCLOS) was nearly identical to that of the High Seas Convention, and accordingly, the definition in UNCLOS reflects the current state of customary international law for the purpose of interpreting 18 U.S.C. 1651. The definition of piracy as set forth in UNCLOS is: "(A) (1) any illegal act of violence or detention, or any act of depredation; (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 property on board such ship or aircraft; or (B) (1) Any act of voluntary participation in the operation of a ship; (2) with knowledge of the facts making it a pirate ship; or (C) (1) any act of inciting or of intentionally facilitating (2) an act described in subparagraph (A) or (B)." Applying this definition to the facts of the case, the Court denied the Defendants' motion to dismiss, despite the Defendants never having boarded or stole anything from the USS Nicholas Navy frigate.

Read a copy of United States v. Mohamed Ali Said

Read a copy of United States v. Hasan

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