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United States v. Ali

United States District Court, District Circuit

September 5, 2013

UNITED STATES OF AMERICA
v.
ALI MOHAMED ALI, Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE United States District Judge

Before the Court is Ali Mohamed Ali’s Renewed Motion for Pretrial Release. Ali has been subjected to pretrial detention for over twenty-eight months, and his trial is not scheduled to begin until November. There is a point in time at which due process can no longer tolerate additional pretrial detention. For Ali, that time has come. Accordingly, the Court will grant Ali’s renewed motion for pretrial release on the grounds that his continued pretrial detention violates his rights to due process.

BACKGROUND

On November 7, 2008, pirates attacked and seized the M/V CEC Future as it was sailing in the Gulf of Aden, near the Horn of Africa. They held the ship and its crew hostage in order to secure a ransom from Clipper Group A/S, the ship’s owner. Clipper paid $1.7 million on January 14, 2009, and the pirates disembarked the ship over the following two days.

Defendant Ali Mohamed Ali is accused of assisting the Somali pirates in their enterprise by negotiating the pirates’ ransom demands directly with Clipper. Ali boarded the CEC Future two days after it was taken by the pirates. An English-speaker, he communicated the pirates’ demands to Clipper representatives during the remaining sixty-nine days while the vessel was held and departed the ship after the ransom was received.

In April 2011, more than two years after the release of the CEC Future, Ali – then acting Director General of the Ministry of Education in Somaliland, a self-declared republic within Somalia – traveled from Somalia to the United States to attend an educational conference in Raleigh, North Carolina. Unbeknownst to Ali, U.S. officials had concocted the conference as a ruse to secure his presence within the United States. U.S. officials arrested Ali when he landed at Dulles International Airport on April 20, 2011, and charged him in a three-count indictment with conspiracy to commit piracy under the law of nations, in violation of 18 U.S.C. § 371, aiding and abetting piracy under the law of nations, in violation of 18 U.S.C. §§ 1651 and 2, and aiding and abetting attack to plunder vessel, in violation of 18 U.S.C. §§ 1659 and 2. (Indictment, April 15, 2011 [Dkt. No. 6].)

On April 28, 2011, the government successfully moved for Ali’s detention pending trial, arguing that Ali presented an “extraordinary risk of flight.” (See Gov’t Mot. in Support of Pretrial Detention, April 28, 2011 [Dkt. No. 10] at 8.) Ali subsequently moved for pretrial release. On June 24, 2011, the Honorable Paul L. Friedman denied Ali’s motion for release. See United States v. Ali, 793 F.Supp.2d 386 (D.D.C. 2011) (“Ali I”). In denying the motion, Judge Friedman did not determine whether Ali’s release would endanger any person or the community. Id. at 392 n.4. Instead, his determination was based entirely on risk of flight. Id. Judge Friedman found that “the gravity of the charges, the potential length of Mr. Ali’s sentence, his ties abroad, his past acts of misrepresentation [involving his immigration status in 1988 and 1995], and the presumption created by the charges against him all lead the Court to find by a preponderance of the evidence that Mr. Ali poses a serious flight risk.” Id. at 392. Accordingly, Judge Friedman concluded that “no condition or combination of conditions [could] reasonably assure the appearance of the defendant” at trial, and denied Ali’s motion for bond. Id.

Over the next several months the government moved to delay the trial on two occasions. Ali objected to the delays and continually asserted his speedy trial rights. On May 11, 2011, only two weeks after Ali’s arraignment, the government sought to delay the trial by up to a year to wait for evidence that it had requested through mutual legal assistance treaties with foreign countries. (See Application for Exclusion of Time Within Which Trial Must Commence, May 11, 2011 [Dkt. No. 15] at 3-4.) Judge Friedman granted the motion in part, but only tolled the speedy trial clock until May 31, 2011. (See Minute Entry, May 12, 2011.) On August 19, 2011, the government made a second request to delay the trial, this time until February 1, 2012, arguing, inter alia, that the “unusual and[] complex” nature of the case required additional time to prepare for trial. (See Application for Exclusion of Time Within Which Trial Must Commence Under the Speedy Trial Act, Aug. 19, 2011 [Dkt. No. 36] at 1.) Over Ali’s opposition, Judge Friedman granted the motion. (Findings of Fact and Order, Sept. 6, 2011 [Dkt. No. 42].)

On December 5, 2011, Ali, having now been detained for over seven months, renewed his motion for pretrial release. (See Defs.’s Sealed Renewed Mot. for Pretrial Release, Dec. 5, 2011 [Dkt. No. 71].) In support of his motion, Ali argued that the record, as expanded since his initial bond hearing, no longer supported his pretrial detention, or, in the alternative, that continued pretrial detention violated his due process rights. (See generally Defs.’s Memo. of Points and Authorities in Support of Defs.’s Renewed Mot. for Pretrial Release, Dec. 5, 2011 [Dkt. No. 72-2].) Judge Friedman heard arguments on the motion on December 20, 2011, and from the bench he affirmed his prior ruling that Ali’s risk of flight necessitated a finding that no condition or combination of conditions could reasonably assure his appearance at trial. See United States v. Ali, 2011 WL 6748503, at *1 (D.D.C. Dec. 21, 2011). The next day, Judge Friedman rejected Ali’s due process claim in a written opinion. Id. He concluded that “[w]hile it may be true that at some point and under some circumstances, the duration of a defendant’s pretrial detention becomes unconstitutional, . . . that point has not been reached in this case.” Id. (citation omitted). In reaching this conclusion, Judge Friedman emphasized that “[w]hile the defendant has been detained for seven (7) months, a firm trial date now has been set – May 21, 2012 – assuring that the defendant will not have been detained in advance of trial for more than twelve (12) months.” Id. (emphasis added). During the December 20, 2011 hearing on the motion, Judge Friedman also stated that he would “revisit . . . bond . . . [i]f [trial] is going to be in the fall [of 2012]” because Ali was “not going to sit in jail until the fall [of 2012].” (12/20/11 Mot. Hr’g Tr. at 4.)

Ali appealed, and on March 14, 2012, the D.C. Circuit affirmed. See United States v. Ali, 459 F. App’x 2 (D.C. Cir. 2012). The Court of Appeals held that Judge Friedman “did not commit reversible error in determining” that pretrial detention was necessary and that Ali “had not established a due process violation based upon the length of [his] pretrial detention.” Id. at 3. In its denial of Ali’s petition for rehearing, the Court of Appeals clarified that its panel decision was “without prejudice to [Ali] raising in the district court his argument that new developments warrant a new bond hearing.” United States v. Ali, No. 12-3001, Doc. No. 1373195 (D.C. Cir. May 10, 2012) (emphasis added).

On December 30, 2011, the case was reassigned to the undersigned. This Court oversaw the government’s production of classified and non-classified evidence, a host of evidentiary and legal motions, and the full briefing on Ali’s motion to dismiss all counts of the first superseding indictment. Given the extensive discovery, including classified information that had to be produced, and an extensive motions practice, the May trial date was not realistic. (See 3/15/12 Status Hr’g Tr. [Dkt. No. 155] at 7.) Moreover, on May 8, 2012, the government filed a second superseding indictment.[1] Following the return of this second superseding indictment, renewed and modified motions to dismiss were filed (see Omnibus Mot. To Dismiss Counts, May 29, 2012 [Dkt. No. 188]), and a two-month trial was set to commence on July 31, 2012.

On July 13, 2012, the Court granted in part and denied in part Ali’s motion to dismiss. See United States v. Ali, 885 F.Supp.2d 17 (D.D.C. 2012) (“Ali II”), vacated in part, 885 F.Supp.2d 55 (D.D.C. 2012) (“Ali III”), rev’d in part and aff’d in part, 718 F.3d 929 (D.C. Cir. 2013). The Court dismissed Count One of the indictment, which alleged conspiracy to commit piracy under 18 U.S.C. §§ 1651 and 371. Id. at 33-35. The Court also narrowed the scope of Count Two, holding that, while Ali’s prosecution for aiding and abetting piracy in violation of 18 U.S.C. §§ 1651 and 2, “may proceed as it is articulated in . . . 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.” Id. at 32. The Court then denied Ali’s due process challenge to his prosecution for hostage taking under 18 U.S.C. §§ 1203 and 2, in Counts Three and Four. Id. at 43-45. The Court’s determination that Counts Three and Four could proceed was contingent in part on the fact that the hostage taking charges in those counts “allege the same high-seas conduct for which Ali is lawfully subject to prosecution for piracy” in Count Two. Id. at 45.

On July 19, 2012, the government filed a motion for reconsideration of the Court’s limitation of the aiding and abetting piracy charge in Count Two. (Mot. for Reconsideration, July 19, 2012 [Dkt. No. 242].)[2] The next day, on July 20, 2012, the government admitted at a status conference for the first time since the commencement of the case “that it had scant evidence to show that Ali aided and abetted the pirates while he was on the high seas.” Ali III, 885 F.Supp.2d at 58. Up until that point – and as recently as June 11, 2012 – the government had taken the position that “the indictment alleges” and “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 Opp’n to Def.’s Mot. to Dismiss Counts of the Indictment, June 11, 2012 [Dkt. No. 201] at 8-9.)

During the July 20, 2012 status conference, the government identified “a concern government-wide about the [Court’s] interpretation” of Count Two, and informed the Court that it was considering filing an interlocutory appeal of the Court’s July 13, 2012 decision. (See 7/20/12 Status Hr’g Tr. [Dkt. No. 280] at 83.) In response to the government’s representation, the Court notified counsel of its intent to reconsider Ali’s bond status given the delay that would necessarily be caused by an interlocutory appeal. (Id. at 78-80.)

By letter dated July 24, 2012, the government formally notified the Court that it intended to pursue an interlocutory appeal of the Court’s July 13, 2012 decision. (See Letter Regarding Intention to File a Notice of Appeal, July 24, 2012 [Dkt. No. 259].) That same day, the Court reconsidered Ali’s pretrial detention. The Court orally ruled that new information substantially undermined the arguments the government had made to Judge Friedman as to risk of flight. (See 7/24/12 Status Hr’g Tr. at 28 (“[T]he weight of the evidence is no longer anywhere as compelling as it was before.”).) In particular, the Court noted that Ali had less of an incentive to flee to Somalia, because his son no longer resided there (id. at 17); he had a long history of working with the U.S. government (id. at 9, 21); contrary to the government’s initial representations, he had family and friends in the Washington, D.C. area (id. at 27); there was “no evidence that [he] ever participated in any kind of violence” (id. at 25); and high-level executives of Clipper “thought he did an excellent job and . . . recommended him for subsequent cases, ” and thus, the government’s main witness was “going to come on and say he likes him.” (Id. at 28.) For these reasons, the Court ruled from the bench that Ali presented neither a flight risk (id. at 24, 28), nor a danger to the community. (Id. at 28.) The Court subsequently ordered Ali’s release into home confinement with Mr. Said of Centerville, Virginia, under the Pretrial Service Agency’s high-intensity supervision program. (Order Setting Conditions for High Intensity Supervisory Program, July 24, 2012 [Dkt. No. 261].)

The next day, considering the government’s intention to file an interlocutory appeal, the Court vacated its prior ruling with regard to the hostage takings charges, and dismissed Counts Three and Four of the indictment. Ali III, 885 F.Supp.2d at 58. On July 27, 2012, the government filed its notice of appeal from that ruling, as well as the Court’s prior July 13, 2012, ruling.

On the same day, the government appealed the Court’s order releasing Ali. The only argument before the Court of Appeals raised by the government was risk of flight. (See generally Appellant’s Memo. of Law and Fact Seeking Reversal of the District Ct.’s Order of Release, United States v. Ali, No. 12-3057, Doc. No. 1386747 (D.C. Cir. July 31, 2012).) On August 3, 2012, the Court of Appeals reversed and remanded to this Court to order Ali’s immediate return to custody for detention pending trial. United States v. Ali, 473 F. App’x 6, 7 (D.C. Cir. 2012). The Court of Appeals stated only:

This court previously affirmed the district court’s December 21, 2011 order determining that no condition or combinations of conditions will reasonably assure appellee’s appearance if he is released, see United States v. Ali, 459 F. App’x 2 (D.C. Cir. 2012), and the underlying reasons for this court’s prior decision remain substantially unchanged.

Id. This Court subsequently committed Ali to the custody of the Department of Corrections. (Order, Aug. 3, 2012 [Dkt. 275].) All told, Ali spent ten days under high-intensity supervised home confinement without incident or reported violation.

On November 19, 2012, the Court of Appeals heard arguments on the government’s appeal from this Court’s July 13 and July 27, 2012 decisions. On June 11, 2013, the Court of Appeals affirmed this Court’s dismissal of Count One and reversed its dismissal of Counts Three and Four and its limitation of Count Two to high seas conduct. United States v. Ali, 718 F.3d 929 (D.C. Cir. 2013). On July 2, 2013, Ali petitioned the Court of Appeals for rehearing and rehearing en banc. On July 10, 2013, the Court of Appeals sua sponte ordered the government to respond, United States v. Ali, No. 12-3056, Doc. No. 1445984 (D.C. Cir. July 10, 2013), and on August 21, 2013, the ...


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