United States v. Ali, 2012 U.S. Dist. LEXIS 103112

Background

Ali Mohamed Ali, a Somali citizen, was charged in a four-count indictment for acts related to the November 2008–January 2009 hijacking of the M/V CEC Future in the Gulf of Aden.
Counts One and Two implicated piracy and aiding and abetting piracy under 18 U.S.C. §§ 1651, 371; Count One was dismissed for failure to state an offense, while Count Two remained as to Ali’s alleged conduct.
Counts Three and Four charged hostage taking under 18 U.S.C. § 1203, with related conspiracy, and the Court initially allowed these to proceed contingent on the piracy-related conduct.
The government moved for reconsideration; Ali opposed. The government later shifted its narrative about when Ali allegedly acted in relation to piracy and the high seas.
At a July 20, 2012 status hearing, the government admitted uncertainty about high-seas conduct and adjusted its factual theory to evidence of minutes on the high seas, undermining prior representations.
The court considered whether Ali’s prosecutorial conduct for hostage taking could satisfy due process under a nexus or other theories of extraterritorial jurisdiction, given the government’s new factual posture.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ali’s Count Two conviction for aiding and abetting piracy requires high-seas conduct.	Ali II held Ali on the high seas; government must prove high-seas facilitation.	Laws and UNCLOS allow broader extraterritorial reach without strict high-seas proof.	Count Two requires proof of high-seas facilitation.
Whether Ali’s hostage-taking charges under § 1203 pass due process under a nexus or other extraterritorial-jurisdiction theory.	Ali’s conduct is within a framework of universal jurisdiction; the offense is conduct abroad.	Due process requires a meaningful connection or fairness; no sufficient nexus exists.	Ali’s § 1203 prosecution does not satisfy due process under any theory evaluated.
Whether the government’s change in factual theory undermines the prior basis for Counts Three and Four.	Court relied on high-seas conduct for hostage charges; government now disputes this.	Nexus theories provide justification independent of the initial piracy theory.	The shifting factual theory undermines the prior basis for Counts Three and Four.
Whether the Court should dismiss Counts Three and Four in light of due-process concerns.	The hostage-taking offenses have independent basis under international-law obligations.	Dismissal is necessary if due process is not satisfied.	Counts Three and Four are dismissed; due process concerns prevail.
Whether the government may pursue an interlocutory appeal of the July 13, 2012 decision.	Traditionally reserved for immediate review when substantial questions are involved.	N/A or not central to the rulings on counts.	Interlocutory appeal appropriate in light of rulings and procedural posture.

Key Cases Cited

United States v. Shi, 525 F.3d 709 (9th Cir. 2008) (extraterritorial jurisdiction and nexus considerations; multilateral conventions relevance)
United States v. Cardales, 168 F.3d 548 (1st Cir. 1999) (nexus and international-law-based approach to extraterritorial jurisdiction)
United States v. Ibarguen-Mosquera, 634 F.3d 1370 (11th Cir. 2011) (nexus and due process in extraterritorial prosecutions; five theories of jurisdiction)
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (foreign-offender notice and extraterritorial application; high seas considerations in some contexts)
United States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir. 1993) (extraterritorial jurisdiction theories and fairness considerations)
United States v. Suerte, 291 F.3d 366 (5th Cir. 2002) (extraterritorial jurisdiction and due process considerations)
Klimavicious-Viloria, 144 F.3d 1249 (9th Cir. 1998) (nexus/foreign-respectful jurisdiction concepts in extraterritorial prosecutions)
United States v. Mohammad-Omar, 323 F. App’x 259 (4th Cir. 2009) (unpublished; discussion of extraterritorial jurisdiction theories)