The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
On July 13, 2012, this Court issued a Memorandum Opinion granting in part and denying in part defendant Ali Mohamed Ali's motion to dismiss the indictment. United States v. Ali, ---F. Supp. 2d ----, 2012 WL 2870263 (D.D.C. 2012) ("Ali II").*fn1 The Court granted Ali's motion with regard to Count One, which alleges conspiracy to commit piracy under 18 U.S.C. §§ 1651, 371, and dismissed it for failure to state an offense. Ali II, 2012 WL 2870263, at *11; see id. at *10--11. The Court also held that, while Ali's prosecution for aiding and abetting piracy in violation of 18 U.S.C. §§ 1651, 2, "may proceed as it is articulated in Count Two of the indictment," "[i]t will be the government's burden to convince the jury beyond a reasonable doubt that Ali intentionally facilitated acts of piracy while he was on the high seas." Ali II, 2012 WL 2870263, at *10; see id. at *7--10. The Court denied Ali's due process challenge to his prosecution for hostage taking under 18 U.S.C. §§ 1203, 2, in Counts Three and Four. Ali II, 2012 WL 2870263, at *17--19. The Court's determination that Counts Three and Four could proceed was contingent in part on the fact that "the hostage taking charges" in Counts Three and Four "allege the same high-seas conduct for which Ali is lawfully subject to prosecution for piracy" in Count Two. Id. at *19.
On July 19, 2012, the government filed a motion asking the Court to reconsider its holding with regard to Ali's prosecution in Count Two for aiding and abetting piracy. (Motion for Reconsideration, July 19, 2012 [Dkt. No. 242] ("Gov't Mot. for Reconsideration").)*fn2 The government argued that the Court erred when it held, consistent with the indictment, the statutory text and legislative history, and international law, that Ali can only be convicted of aiding and abetting piracy if the government proves that he was on the high seas when he facilitated piratical acts.*fn3 A few hours later, Ali filed a preliminary opposition to the government's motion for reconsideration. (Defendant Ali Mohamed Ali's Opposition to the Government's Motion for Reconsideration of the Court's July 13, 2012 Decision on Ali's Motion to Dismiss, July 20, 2012 [Dkt. No. 244].)
At a status hearing on July 20, the Court denied the government's motion for reconsideration on grounds that the government, merely by submitting additional commentary regarding Article 101(c) of the UNCLOS, had not met its heavy burden to show that the Court had "patently misunderstood a party, . . . made a decision outside the adversarial issues presented to the court by the parties, [or] . . . made an error not of reasoning, but of apprehension," or that "a controlling or significant change in the law or facts [had occurred] since the submission of the issue to the [C]court." United States v. Coughlin, 821 F. Supp. 2d 8, 18 (D.D.C. 2011) (some alterations in the original; internal quotation marks and citations omitted). (See 7/20/12 Tr. at 73--78.)
Setting aside the merits vel non of the government's legal arguments for reconsideration, the Court was most surprised by the dramatic shift, on July 20, in the government's position with regard to the facts. In the government's June 11, 2012 opposition to Ali's motion to dismiss, the government clearly stated that "the evidence will show that [Ali] was acting as a negotiator for the pirates while the CEC Future was on the high seas." (Gov't Mot. to Dismiss Opp'n at 9.) Based on this representation, it was assumed by the Court and defense counsel that, in order to convict Ali under Count Two, the government would simply have to prove what the indictment alleged and what it said it could prove-that Ali, with the requisite intent, "act[ed] as a negotiator for the pirates while the CEC Future was on the high seas." (Id. (emphasis added).) See Ali II, 2012 WL 2870263, at *10 ("It will be the government's burden to convince the jury beyond a reasonable doubt that Ali intentionally facilitated acts of piracy while he was on the high seas.").*fn4
At the July 20 status hearing, however, the government essentially confessed error and admitted that it had scant evidence to show that Ali aided and abetted the pirates while he was on the high seas. (7/20/12 Tr. at 67, 69.) The government revised its account of the evidence and stated, for the first time, that Ali boarded the CEC Future on November 9, 2008, in territorial waters (id. at 6--7, 70, 73), and that the CEC Future then sailed through international waters for a matter of "minutes," once or maybe twice, on November 9 or maybe early on November 10, before stopping in Somali waters near Eyl, where it remained for the duration of the incident. (Id. at 7 ("We're not talking about days, Your Honor. We're talking about minutes."); see id. at 16--20.) The government acknowledged that Ali did not call the ship's owners until after the CEC Future had returned to Somalia's territorial waters on November 10. (Id. at 16--17.) The government conceded, therefore, that "it would be very difficult" for it to prevail on Count Two under the Court's interpretation (id. at 67), because it had no "specific evidence" that would show that from "the moment that [Ali] boarded [the CEC Future] . . . he did X, Y, and Z while he was in territorial waters versus the moment that he crossed" into international waters. (Id. at 69.)*fn5 In response to the government's new representations, the Court repeated that its rejection of Ali's due process challenge to Counts Three and Four was "largely dependent on what [the Court] understood would be a clear showing of high seas" and noted that it was inclined to reconsider its holding. (See id. at 43--44.)
By letter dated July 24, 2012, the government notified the Court that it intends to pursue an interlocutory appeal of the Court's July 13, 2012 Memorandum Opinion. (See Letter Regarding Intention to File a Notice of Appeal, July 24, 2012 [Dkt. No. 259].) While the government has been less than clear on the issue (see supra n.5), given its representations on July 20 and the fact of its interlocutory appeal, it can only be assumed that the government is not confident of its ability to show that Ali ever did anything to aid and abet the pirates while he was on the high seas. Moreover, at a hearing on July 24, 2012, the government indicated that it would most likely seek an interlocutory appeal of the Court's rulings with regard to both Counts One and Two. As the Court indicated, first on July 20 and then again on July 24, this procedural history has caused the Court to reverse its prior ruling with regard to the hostage taking charges so that the government can seek interlocutory review of the dismissal of Counts Three and Four as well.
It bears emphasizing that Ali's due process challenge to Counts Three and Four presents an incredibly difficult legal question-one that should be considered along with the Court's rulings on the piracy charges. As the Court stated in its July 13 Memorandum Opinion:
The Fifth Amendment's Due Process Clause requires that "[n]o person . . . be deprived of life, liberty, or property without due process of law." U.S. Const., amend. V. Neither the Supreme Court nor the D.C. Circuit has addressed whether or how the Due Process Clause limits the extraterritorial application of U.S. criminal statutes. And although the courts that have considered the question "are in consensus" that the extraterritorial application of U.S. law "must comport with due process," United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1378 (11th Cir. 2011) (collecting cases), they are split as to what due process requires. [United States v. Campbell, 798 F. Supp. 2d 293, 306--08 (D.D.C. 2011).] "One line of cases reasons that '[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States so that such application would not be arbitrary or fundamentally unfair.'" Id. at 306 (alteration in the original) (quoting United States v. Davis, 904 F.2d 245, 248--49 (9th Cir. 1990); citing [United States v. Yousef, 327 F.3d 56, 111 (2d Cir. 2003)]; United States v. Mohammad-Omar, 323 F. App'x 259, 261 (4th Cir. 2009) (per curiam) (unpublished)). Another line of cases "require[s] only that extraterritorial prosecution be neither arbitrary nor fundamentally unfair," and these cases "are not concerned with whether a sufficient nexus exists." Id. at 307 (citing United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993); United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999); United States v. Suerte, 291 F.3d 366, 375--77 (5th Cir. 2002)).
However, "'[t]his difference is less real than apparent.'" Id. (quoting United States v. Shahani--Jahromi, 286 F. Supp. 2d 723, 728 n.9 (E.D.Va. 2003)). Even in Davis, where the Ninth Circuit established the nexus concept, the court acknowledged that the "ultimate question" is whether "application of the statute to the defendant [is] arbitrary or fundamentally unfair." 905 F.2d at 249 n.2. Thus, the nexus test is only a tool courts use to address broader due process concerns. Courts that apply it explain that they do so because it "'serves the same purpose as the minimum contacts test in personal jurisdiction,'" which reveals that their real aim is to "'ensure that a United States court will assert jurisdiction only over a defendant who should reasonably anticipate being haled into court in this country.'" Mohammad-Omar, 323 F. App'x at 261 (quoting United States v. Klimavicious-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1988)).
Ali II, 2012 WL 2870263, at *17 (footnotes omitted). Thus, the question remains "whether Ali's prosecution under § 1203 is arbitrary or fundamentally unfair because he had no reasonable expectation of being tried here." Id. The Court's decision, on July 13, was premised on the fact that the specific violation of § 1203 with which Ali is charged exhibits the two features that have traditionally denoted universal jurisdiction crimes: hostage taking is "universally condemned by the community of nations" and the relevant conduct occurred "outside of a [s]tate or where there is no [s]tate capable of punishing, or competent to punish, the crime."
Id. at *18 (quoting Yousef, 327 F.3d at 105).*fn6 Now, however, the Court has learned for the first time that the government lacks proof that Ali facilitated piratical acts while the CEC Future was on the high seas.
Therefore, the Court must confront the question of whether Ali's prosecution for hostage taking under 18 U.S.C. § 1203 can satisfy due process by means of the nexus test or otherwise. "Courts that have applied [the] nexus test have considered a wide range of factors including (1) the defendant's actual contacts with the United States, including his citizenship or residency; (2) the location of the acts allegedly giving rise to the alleged offense; (3) the intended effect a defendant's conduct has on or within the United States; and (4) the impact on significant United States interests." United States v. Brehm, No. 1:11-cr-11, 2011 WL 1226088, at *5 (E.D.Va. Mar. 30, 2011) (collecting cases). Other courts, when assessing whether a nexus exists between the United States and crimes committed on ships consider "the status of the vessel": "'A defendant on a foreign-flagged ship would have a legitimate expectation that because he has submitted himself to the laws of one nation (the foreign-flag nation), other nations will not be entitled to exercise jurisdiction without some nexus,'" United States v. Perlaza, 439 F.3d 1149, 1168 (9th Cir. 2006) (alterations omitted) (quoting Klimavicious-Viloria, 144 F.3d at 1257), but "'if a vessel is deemed stateless, there is no requirement that the government demonstrate a nexus between those on board and the United States before exercising jurisdiction over them.'" Id. at 1161 (alterations omitted) (quoting United States v. Moreno-Morillo, 334 F.3d 819, 829 (9th Cir. 2003)). Finally, courts that eschew the nexus test decide whether due process is satisfied by determining if the prosecution in question comports with one of the five theories of extraterritorial jurisdiction under international law.*fn7 See generally Ali II, 2012 WL 2870263, at *4 (describing the five theories of extraterritorial jurisdiction).
Ali's prosecution under § 1203 does not pass muster under any of these criteria. Ali is a Somali citizen, and at the time of the charged conduct he was residing in Somalia. The acts giving rise to the alleged violation of § 1203 occurred on a Bahamian-flagged ship sailing off the coasts of Somalia and Yemen, halfway around the world from the United States. The government has not claimed that Ali or his alleged co-conspirators intended to have any effect on the United States by their actions. Nor has it claimed, with any force, that the hijacking of the CEC Future indeed affected U.S. interests.*fn8 Finally, the Court has held that Ali's prosecution for hostage taking, while within the U.S. government's ...