Federal prosecutors are routinely on the hunt for high-profile prosecutions that can generate publicity and advance their careers up the judicial corporate ladder. In today’s environment perhaps nothing fits these criteria better than cases involving terrorism or piracy. Unfortunately for prosecutors, instances of terrorism are extremely limited, even with the ongoing spate of government set-ups that typically involve paid informants going to great lengths to entrap hapless would-be “terrorists.” Many of these so-called terrorism prosecutions conclude with the accused pleading guilty to nothing more than lying to the federal agents who insisted on questioning them.
Piracy, on the other hand, is providing more fertile ground for career-making federal prosecutions. Perhaps the biggest challenge to government prosecutors in these matters is physically bringing alleged pirates into US federal courts. Once an accused pirate was firmly ensconced in a federal courtroom, prosecutors rarely had difficulty putting together a damning fact pattern. It appears, however, that the government’s tendency to play fast and loose with the facts is running into stiff resistance in at least one federal courtroom.
This week a federal judge in Washington, DC severely admonished prosecutors bringing piracy charges against Ali Mohamed Ali, an accused Somali pirate. Ali has an unusual background for someone accused of piracy. He is a former director general in the Somali Ministry of Education. Ali was lured to the US by federal agents who enticed him with round trip plane tickets and an invitation to a fictitious education conference. Upon his arrival at Dulles International airport he was charged with piracy, hostage taking and conspiracy.
United States District Judge Ellen Huvelle now has serious misgivings about the case being brought against Ali. With less than one week remaining before the beginning of trial, prosecutors disclosed for the first time that the alleged “piracy” is predicated solely upon Ali having spent between 24 and 28 minutes in international waters. Perhaps even more shocking is the fact that prosecutors now admit that they cannot prove specifically how he facilitated piracy during that brief time.
“It’s astounding to me,” Judge Huvelle told prosecutors at a hearing. “I have the pleading where they (prosecutors) said this is no problem; you’re going to prove that he was on international waters. I didn’t know that you’d prove it for less than 24 hours.”
“Now with five days to go and the guy’s liberty at stake, I am told that we don’t…he didn’t do anything that we can specify on the high seas,” Huvelle said. “That to me is unbelievably inexcusable behavior.” Judge Huvelle further lamented that there was no evidence that Ali engaged in violence and observed that the government’s case lacked a “smoking gun.” She wondered aloud how Ali came to be “Public Enemy Number One.”
Judge Huvelle’s anger only grew as the flimsiness of the government’s case was revealed
Prosecutor Gregg Maisel tried to assuage Judge Huvelle by stating, “We have made our best efforts. We have not misled the court.” This had little effect on the judge who grew angrier as the hearing progressed. She told prosecutors, “The criminal law does not exist to go push something to the outer limits. That’s not what a criminal case is about. You should not be prosecuting a case that you cannot win. It is an outrage.” She said she wanted it “known to whoever reviews this in your office or the Court of Appeals that I feel the government has misled me badly.”
AUSA Greg Maisel, caught in a web of lies
Much of what fueled the judge’s anger appeared to be the fact that Ali had remained in prison for over a year on what are now recognized to be false accusations by government prosecutors. “This guy has been held on your representations since April 2011; is that correct? She said. “And now you think that there’s a legal problem. If you had any concern about it, you should have raised it before now.” Judge Huvelle dismissed the conspiracy to commit piracy count and ruled that for the other piracy count, the government would have to prove that Ali “intentionally facilitated acts of piracy while he was on the high seas” and not in Somalia’s territorial waters or somewhere else.
Prosecutors promptly filed a motion for Judge Huvelle to reconsider her ruling. In that motion prosecutors claim that the judge did not have the benefit of United Nations legal experts and independent scholars whom the government asserts will confirm a broader definition of piracy. Judge Huvelle told prosecutors to “have a seat” as she announced she would not reconsider her ruling. The government is appealing, but Judge Huvelle ordered Ali released on home confinement bail over the objection of prosecutors. “Why should I keep him locked up for another year so you can litigate a principle?” she asked prosecutors. The decision from the appellate court is expected to take months.
Meanwhile, prosecutors threatened to have Ali deported if his ordered release to home confinement takes effect. They claim that he lacks legal status to remain in the US and would be transferred to the custody of Immigration and Customs Enforcement (ICE) if ordered released. Judge Huvelle was not sympathetic to the prosecutors’ argument. Upon hearing the prosecutors’ threat of having ICE take Ali into custody she shot back, “Not if I can help it.” She went on to tell the prosecutors, “You brought him here. You bamboozled him here…So you fought tooth and nail to lock him up. You brought him here under false pretenses, now you tell me he can’t be freed while you take up an extremely difficult legal principle.”
Judge Huvelle further indicated that other counts might be subject to dismissal. She advised that her prior decision allowing the hostage taking counts to go forward were “premised on government representations that now turn out to be pretty weak.” Her statement suggests that the entire prosecution is on the verge of being thrown out now that the government’s main allegations have been exposed as embellishments and outright fabrications.
The original charges against Ali involved his alleged participation in the hijacking of the ship CEC Future on November 7, 2008 in the Gulf of Aden. The government alleges that pirates seized the ship and forced it to sail to locations where Ali and others got onboard. It is alleged that Ali then demanded $7 million from the ships owners for release of the ship and its crew. Prosecutors claim that two months later a ransom of $1.7 million was paid and the crew, vessel and cargo were returned.
The CEC Future was ransomed for $1.7 million. Was Ali a negotiator or pirate?
The defense tells a very different story. Ali was sought out by pirates who needed an English speaker to communicate their demands. He claims his participation was in an official capacity to help mediate a crisis involving pirates and hostages. The defense notes that Ali’s subsequent abduction by the US took place over two years after the ship’s seizure.
The government claims to have a witness who will testify that Ali was a willing participant in piracy and hostage taking. Jama Idle Ibrahim was sentenced last year to 25 years in federal prison for his role in the hijacking. Ibrahim, presumably in return for a sentence reduction, will appear for the prosecution and offer the government’s version of events.
Jama Idle Ibrahim will testify for the government and try to get out from under a 25 year sentence
Judge Huvelle demanded to know specifically what Ibrahim would say about Ali’s involvement. “I don’t want to spend up to two months and use up the taxpayers’ money for a case that won’t have the legs to stand on,” she said.
Judge Huvelle’s pronouncements strongly suggest that she has had enough of the government’s lies and obfuscations. Federal prosecutors routinely cross the line from puffery to prevarication, but something about this matter has the judge particularly perturbed. Intellectually honest judges would never tolerate the tactics that unfortunately have become routine for government prosecutors. This may be a case where the government simply went too far with a judge whose patience had been eviscerated.
The government’s failure to get its way in this matter is possibly a direct result of where the case was brought. Forum shopping is an effective tactic commonly used by federal prosecutors. This allows them to have cases heard in more sympathetic districts where there are reliably conservative judges and jury pools. Washington, DC is commonly perceived as a more liberal district with a somewhat reasonable roster of judges and a liberal jury pool largely composed of minorities. This is why most cases involving national security, terrorism and piracy are usually brought across the river in the more conservative federal court for the Northern District of Virginia. Had Ali’s case been heard there, it likely would have had a very different outcome.
The idea that a federal judge would force government prosecutors to prove their case is problematic for them and warrants a response. One way prosecutors may elect to game the system will be to load up Judge Huvelle with civil cases. These tend to be complex and time consuming matters that tie-up courtrooms for long stretches. While Judge Huvelle is wading through a docket of civil cases, she will be unable to interfere with other meretricious matters advanced by the government.
Mr. Ali, however, has already reaped the benefit of being afforded a fair hearing and may be on his way towards putting this matter behind him. He is very fortunate to have had a judge who recognized the absurdity of the claims made by the government. There can be little doubt that the government overplayed its hand, but that is a relatively common occurrence in criminal matters and rarely earns the kind of admonitions delivered by Judge Huvelle. Perhaps what is playing out is a judicial push-back against the ongoing power grab by federal prosecutors. Judge Huvelle has put the government on notice that violating the rights of the accused will not go unanswered in her courtroom. The prosecutors on this case will have to look beyond Mr. Ali for their pirate.