Somali Pirate to be Charged as Adult, Faces Life

By Jeralyn, Section Crime in the News
Posted on Tue Apr 21, 2009 at 08:01:14 PM EST
Tags: Somali Pirates, Abduwali Abukhadir Muse (all tags)

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Here is the complaint (pdf) filed against Abduwali Abukhadir Muse, the accused teen-aged Somali pirate. The primary charge is Piracy Under the Law of Nations which carries mandatory life...no parole.

The Government now says he was the ringleader of the pirate attack. Did Captain Phillips tell them that? How else would they prove that when the others are dead? [Added: Answer is it came from interviews with the Captain and other crew members.]

He cried in court today. He is being represented by the Federal Defenders office in New York. The Court ruled him to be an adult today even though his father says he's 15 years old. [More...]

His next court date is May 21 for a preliminary hearing. If the grand jury indicts before then, he won't get a preliminary hearing. The Indictment is considered probable cause. From the docket entry:

Deft appears with Federal Defender atty's Philip Weinstein and Deirdre Von Dornum. AUSA Brendan McGuire present for the gov't. Somali interpreter present. Pretrial Report waived. Detention on consent without prejudice. Other: Consular notification made. ( Preliminary Examination set for 5/21/2009 at 10:00 AM before Judge Unassigned.)

and

Age Hearing as to Abduwali Abdukhadir Muse held. Deft appears with Federal Defender atty's Philip Weinstein and Deirdre Von Dornum. AUSA's David Raskin and Brendan McGuire present for the gov't. Somali interpreter present. Finding: Not a juvenile.

Update: The AP has more on his background here.

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Somali Pirate to be Charged as Adult, Faces Life | 49 comments (49 topical)

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When your client is the last standing (5.00 / 1) (#4)
by Peter G on Tue Apr 21, 2009 at 08:20:15 PM EST

... he is always accused of being a leader, if not the leader. Or so it always seems. Whether the co-defendants are all cooperating, or fugitives, or dead, or whatever. Remarkable how it works out that way, according to the prosecutor. Any other defense attorneys have this experience? We sure have.

: I have noticed often (5.00 / 1) (#14)
by Militarytracy on Tue Apr 21, 2009 at 10:03:59 PM EST

whenever I've read about certain related multiple prosecutions, everybody seems to have been a ringleader of something until their trial is over.

Tried as an adult (5.00 / 3) (#21)
by nellre on Wed Apr 22, 2009 at 12:33:25 AM EST

Oxymoron that I have never understood. Either he is an adult or his isn't. I don't see how society is better protected by treating children like they were not children.

Heard on radio: his mother says he is 16. Same host claimed she was trying to use him to immigrate to the US. Some folks have heart, some don't. Some folks have brains, some don't. Most folks have at least one of the two. Some have neither.

Somalia is a lawless nation (5.00 / 3) (#22)
by thereyougo on Wed Apr 22, 2009 at 01:07:08 AM EST

Since 1991 Somalia has had no government and is essentially a nation in free fall, subject to
what we see being played out on the high seas. Kids with cell phones and AK-47s

As a result of no formal government Somalis claim, the vultures of the world ascended into its waters sending their toxic waste to their seas. With no one patrolling their coastline the size of California, Europe was sending tons of toxins that has caused illnesses and threatened their fishing. That story has not been told.

The Somalis began patrolling their waters to ward off this type of dumping,albeit amateurish and the rest is history.

I agree. (5.00 / 0) (#50)
by MyLeftMind on Wed Apr 22, 2009 at 01:52:42 PM EST

It's one thing to understand that poverty and a violent environment increase the likelihood that children will turn into criminals, but it's a whole different thing to excuse individual lawbreaking by claiming the offender is really the victim. There are always other choices, even if your life sucks and your options are stark. The same holds true for crime here, especially sexual crimes. Child molesters have often been abused themselves. That doesn't excuse their active, deliberate decision to prey on children themselves. There's a pattern of violence that is often overlooked when people claim the perpetrator is really a victim. Of course Muse is a victim of the political situation in Somalia. So is the rest of his family. Is his mom out there killing for money? Does he have sisters? Are they willing to attack other people? Or are they making more acceptable choices, even though their lives are hard?

We can try to prevent or mitigate situations like what has happened in Somalia. That would be having a heart. But just accepting lawbreaking and violence because it has a root cause does not fix the problem.

That said, I think people who commit crimes should be harshly punished, but everyone who has the potential and willingness to return to society and truly function lawfully should be relieved of the burden of a record of their arrest and conviction. A stupid mistake shouldn't haunt you the rest of your life, unless what you did is so horrific that society needs to be protected from you, or unless you aren't willing or able to be rehabilitated. We aren't helping society when we allow drug convictions to prevent people from ever getting a good job. On the other hand, if that guy Markoff actually bludgeoned women to death, he should be locked up for life. We need balance and common sense.

15 years old can be prosecuted as adults here (5.00 / 1) (#54)
by diogenes on Wed Apr 22, 2009 at 11:40:00 PM EST

His age doesn't matter as an absolute prohibition of prosecution. Also, in Somalia I suspect that 15 year olds function much more as grown adults rather than living the extended adolescence found in western society.
Whether or not he was the ringleader is for the trial to decide.

To even suggest (none / 0) (#1)
by CoralGables on Tue Apr 21, 2009 at 08:06:58 PM EST

that this kid is the ring leader is an embarrassment to those making the court filing.

A boat, some agile friends, and lots of weapons (5.00 / 2) (#7)
by ruffian on Tue Apr 21, 2009 at 08:52:11 PM EST

is all it takes to be a ringleader. I have no doubt a teenager can handle it just fine.

That said, I think the charge and sentence are way overboard, so to speak. We should not have brought him here to begin with.


I would say (5.00 / 3) (#12)
by CoralGables on Tue Apr 21, 2009 at 09:27:14 PM EST

the ring leader was sitting at home, eating a steak, watching the Somali soccer team on his satellite dish.


: Probably the warlord (none / 0) (#25)
by Fabian on Wed Apr 22, 2009 at 05:35:53 AM EST

who gets a piece of the action.

Caught the video during Nightly News. (none / 0) (#2)
by easilydistracted on Tue Apr 21, 2009 at 08:07:27 PM EST

If he is the ringleader of the attack, then he must have been leading a band of tweens because he sure appears rather young.

Did the other hostages... (none / 0) (#3)
by EL seattle on Tue Apr 21, 2009 at 08:17:05 PM EST

... give descriptions of the pirate crew after they were let go but before the snipers freed Captain Phillips? I hope that during that timeframe they were able to give a clear description of who among the pirates played what role in the seizure of their ship.

First Mate Statement (none / 0) (#5)
by Jade Jordan on Tue Apr 21, 2009 at 08:38:32 PM EST

The First Mate's statement said that he was the ringleader, the one giving everyone else orders. I have no reason to doubt his statement.

Seems like being arrested is the highlight of his life. People don't smile that much when they whin the big lottery.

Greenwald unleashes some killer snark (none / 0) (#6)
by ruffian on Tue Apr 21, 2009 at 08:46:22 PM EST

on a very deserving jane Harman. Enjoy!

BTW, if anyone is on Twiter, Greenwald is worth following. He has discovered that the best use of Twitter is to mock Politico. fun for everyone!

Not watching TV tonight - I had to work late, so I'm enjoying some quiet.

Lawyers - any chance they plea bargain this dread pirate and send him back to his mother, and a jail in Kenya?

: oops-thought this was the open thread (none / 0) (#8)
by ruffian on Tue Apr 21, 2009 at 08:55:55 PM EST

Sorry!

: No lawyer here... (none / 0) (#9)
by easilydistracted on Tue Apr 21, 2009 at 08:56:24 PM EST

but in this layman's opinion, it seems that the US has made too much ado over this one to back off with just a plea bargain. But then again, look at the Ted Stevenson case. Never mind.

: Do you really twitter? (none / 0) (#17)
by Radiowalla on Tue Apr 21, 2009 at 10:56:27 PM EST

Do you find it worth your while? This is a serious question from someone who has yet to venture there.

how in the heck (none / 0) (#10)
by txpublicdefender on Tue Apr 21, 2009 at 09:04:05 PM EST

And how in the heck did they make a finding that he was not a juvenile? Did he say he was 18? I didn't think there were birth records in Somalia.

From the link... (none / 0) (#11)
by Steve M on Tue Apr 21, 2009 at 09:07:54 PM EST

Assistant U.S. Attorney Brendan McGuire said then that Muse initially told a Somali interpreter on April 12, when he was first detained, that he was 16, then that he was 19, then that he was 26.
Muse indicated a day later on a different U.S. Navy vessel that he was 19, McGuire said. The prosecutor said Muse told an FBI agent Monday that his age was 15 but later apologized to the agent for lying, telling him he was 18, going on 19.
McGuire said investigators also spoke to one of Muse's brothers, who indicated he was 18.

I'm not clear what the evidentiary standard is for this sort of thing. Apparently it's not a jurisdictional fact...


Skeletal age determination (5.00 / 1) (#26)
by Fabian on Wed Apr 22, 2009 at 05:41:38 AM EST

can tell you if he young enough to be a minor, but it isn't precise and it isn't accurate past sixteen.

I think the whole trial for piracy is blatant political grandstanding. It's better for the defendant than other options, but it's not going to have much of an impact on the piracy.


I wonder (none / 0) (#27)
by Steve M on Wed Apr 22, 2009 at 06:04:46 AM EST

what sort of scientific evidence they're constitutionally allowed to force the defendant to provide. Like, generally speaking, I believe they can force you to provide fingerprints, but not a DNA sample or blood test, unless I'm mistaken. I wonder if they can force you to open your mouth so they can look for wisdom teeth (not that that's precise enough to tell you if he's 18).

I think it's a moot point as the court seems to have already made a ruling based on testimonial evidence. My impression is that age is a necessary component of the court's jurisdiction (because otherwise it would be in juvenile court) but not an actual element of the offense (meaning age doesn't have to be proven to a jury beyond a reasonable doubt).

I'm in favor of the trial although I would agree with you that the trial is hardly going to have a measurable deterrent effect. Still, I like showing the world that we're capable of dealing with these people in a civilized way as opposed to summary execution like they might have done centuries ago.


In an earlier comment Peter G (none / 0) (#39)
by oculus on Wed Apr 22, 2009 at 10:05:01 AM EST

filled in some of the blanks re trying a juvenile as an adult in federal district court. I am now curious as to the standard of proof re establishing whether a defendant is a juvenile or an adult--a different issue.


It's a preliminary question of fact (5.00 / 1) (#44)
by Bemused on Wed Apr 22, 2009 at 11:34:52 AM EST

I assume you mean the standard of proof for determing a person's age not the standards to be employed in determing whether a person of a known age should be tried as an adult.

I can't find a federal criminal or juvenile delinquency case on point quickly, presumably because cases where the actual age is the issue are rare.

The only thing I can find is from the U.S. Attorney's manual and that is of course a biased position:

" A recurrent issue in juvenile proceedings is whether the subject of an investigation was under the age of 18 at the time of the offense and whether he or she now is under 21 for the purpose of juvenile delinquency proceedings. See 18 U.S.C. § 5031.

If you have a question concerning the subject's age and the subject has no undisputed proof of birth date to offer the court, we have taken the position that the burden of proof is on the person claiming the benefit of the federal juvenile statutory provisions, especially since that person is in the best position to offer evidence of his or her age. On the other hand, if the exact date of the offense is the critical issue, that burden will probably be placed on the prosecutor." The boldened language suggests there is no authoriative statute or case on point, so questions remain. arguments for all of these positions exist:

Is it an element of the offense which must be proven by the prosecution to the jury beyond a reasonable doubt?

Is it a preliminary question of fact to be determined by the court? And, if so, who has the burden of proof and what is the standard? preponderance of the evidence, clear and convincing?

My guess would be that in a criminal context age is a preliminary question to be determined by the court and the burden is on the government to prove the person is an adult if it wishes to try him as an adult on the basis of age alone. Whether it's a preponderance standard or a heightened standard is even more difficult to answer.

***

If, it is not found based on whatever standard applies that the person is an adult by virtue of age, then the person must be afforded a transfer hearing and the person being eligible for transfer by virtue of the nature of the alleged offense (the case here because it's a violent felony and it appears undisputed he is at least 15), the court must still consider other factors besides the nature of the offense and determine transfer is in the best interests of justice before ordering transfer to adult jurisdiction. The court must make specific findings including ones based on the specific individual's level of functioning etc., as to whether transfer is appropriate.

I find it interesting (none / 0) (#46)
by Steve M on Wed Apr 22, 2009 at 12:15:35 PM EST

that the court's finding was "not a juvenile" as opposed to simply "adult." I don't know if that suggests anything about who had the burden of proof or if it's simply an immaterial choice of phrasing.

I tend to agree with you that it ought to be the government's burden. In the civil context, if the defendant suggests the court lacks jurisdiction for whatever factual reason, ordinarily the burden shifts to the plaintiff to affirmatively demonstrate that the case is properly before the court. Certainly the burden wouldn't be any less in the criminal context, and who knows, it might be more.


: I once prosecuted a fellow who, (none / 0) (#47)
by oculus on Wed Apr 22, 2009 at 12:24:57 PM EST

in one state court sd. he was a juvi and in the juvenile div. of the same county sd. he was an adult.

: there's no memorandum order or even minutes (none / 0) (#49)
by Bemused on Wed Apr 22, 2009 at 01:22:10 PM EST

up on PACER now from which to determine what legal standards the court employed or even if it stated on the record its view of burden of proof in determining his status.
The magistrate's statement reported in the Times that he did not find the parents credible suggests he may have expressly or impliedly have been placing the burden on Muse. Why would Muse need credible evidence of his age if he did not have the burden of proving it in the court's view?
The only other evidence before the court appears to be the conflicting statements Muse himself is alleged to have made. I suppose the court could have found the government met a burden of proof imposed upon it by convincing the court that the statement he is an adult is deemed credible and the statement he is a minor is not found not credible.
It would probably be better for Muse if the ruling was based upon his failure to meet a burden than upon the court's credibility determination in assessing whether the government met its burden.
In either event, the parties will have opportunity to present additional evidence before a final ruling on whether he is 18 or older is made, but if there is no other evidence than the assertions of various people, Muse has a better chance of a subsequent ruling the burden of proof and quantum of evidence rulings were legally incorrect than having credibility determinations reconsidered or overruled.
But, because he would still face the prospect of transfer to adult jurisdiction even if he did get a ruling he is a minor that could a shortlived win. That would however give his defense opportunity early in the game to have him evaluated for social and emotional maturity, cognitive functioning etc., useful for portraying him in a more sympathetic light not just in public perception but to the government (and public perceptions do affect the government indirectly).
I seriously doubt the government would accede to juvenile jurisdiction in the absence of court order unless incontrovertible evidence of age is discovered, but expert evaluations describing him as socially, emotionally, intellectually or otherwise developmentally less progressed than the "typical" kid his age could help in plea negotiations.

Wisdom teeth (none / 0) (#45)
by Fabian on Wed Apr 22, 2009 at 12:02:08 PM EST

would be even less accurate!

I don't doubt that a sixteen year old with some ambition and skill could be a ring leader. There have been teens running sophisticated theft rings, which takes plenty of skill and discipline. Attacking and capturing a big, slow ship with almost no defensive capability is easy enough. The hard part is negotiating for the ransom.


Not even a pirate (none / 0) (#13)
by MrConservative on Tue Apr 21, 2009 at 10:00:14 PM EST

can understand the lack of compassion present in the US justice system, I guess.

: He has no clue what he's in for... (5.00 / 3) (#30)
by kdog on Wed Apr 22, 2009 at 07:57:01 AM EST

Right now its all paches and cream...eating better than he ever has probably.
If it gets life in p.m.i.t.a. prison, that smile will be but a distant memory.
Redemption loving sap that I am, I hope he gets somekind of chance at a life. 15 or 19 or 22, he never had a chance.

: Really? (none / 0) (#16)
by Radiowalla on Tue Apr 21, 2009 at 10:54:50 PM EST

Well, we will have to await further (none / 0) (#15)
by Radiowalla on Tue Apr 21, 2009 at 10:54:20 PM EST

investigation into his real age before moving forward on his prosecution. I wouldn't necessarily take his father's word at face value just yet.

: Especially since his father (none / 0) (#18)
by Amiss on Wed Apr 22, 2009 at 12:07:24 AM EST

could not remember the birthdate or ages of any of his other children.

No Hanging from the Yardarm? (none / 0) (#24)
by Doc Rock on Wed Apr 22, 2009 at 05:00:41 AM EST

No yardarm n/t (none / 0) (#28)
by Jen M on Wed Apr 22, 2009 at 06:39:23 AM EST

The US military still has a ship with yardarms (none / 0) (#48)
by cenobite on Wed Apr 22, 2009 at 12:31:55 PM EST

US Coast Guard Cutter Eagle


: so lovely! n/t (none / 0) (#53)
by Jen M on Wed Apr 22, 2009 at 05:41:20 PM EST

this is just a complaint (none / 0) (#29)
by Bemused on Wed Apr 22, 2009 at 07:44:59 AM EST

but it contains several charges that could be included in an indictment or information and made the basis for a plea agreement.

The firearm charges under § 924 (c)(1)(A) (ii) and (iii) carry mandatory 7 and 10 year sentences respectively.

The § 2280 maritime violence charge carries 0-20 years.

Hostage taking under § 1203 carries any term of years or life.

Only the piracy count, § 1651, carries mandatory life.

Given the facts, defense counsel surely will vigorously pursue a favorable plea bargain. The age querstion is not that important per se. He can be tried as an adult even if it is established he is a juvenile:

A person who committed an offense
prior to age 18 may be adjudicated
as an adult if the offense charged was a violent
felony or drug trafficking or importation
offense and if the offense was committed
after the person's 15th birthday;
the person possessed a firearm
during a violent offense and the
offense was committed after the person's
13th birthday; the person had been previously adjudicated delinquent of a violent felony
or drug offense (18 U.S.C. § 5032).

The questions concerning his role in the offense will be a lot more salient to the sentence, if he pleads to a count with a discretionary sentencing range, than to whether he could be convicted of piracy.

One thing his lawyers should also pursue is the possibility he would be allowed to remain here following his sentence if he cooperates by providing information concerning the higher ups for whom he worked. I could see the possibility that would be acceptable to the government because returning him to Somalia after cooperation would be tantamount to a death sentence. A problem there is his family back in Somalia who might also be in grave jeopardy.

: I can't really imagine (5.00 / 1) (#31)
by Steve M on Wed Apr 22, 2009 at 08:19:10 AM EST

what use it would be to the government to have information about the pirate ringleaders back in Somalia. What would we even do about them? It's rather like trying to persuade an al-Qaeda operative to implicate bin Laden.

First, (none / 0) (#32)
by Bemused on Wed Apr 22, 2009 at 08:32:19 AM EST

I see no reason to equate this kid with an al-Qaeda operative. A poor kid undertaking a crime for money with no apparent political or religious motivation should not be considered a terrorist.

Second, I don't think it takes much imagination to conceive of uses for intelligence concerning who is directing and controlling the operations of the pirates. Even if we assume there is no possibility that such persons could ever be subjected to prosecution in any jurisdiction (a pretty extreme assumption), the uses such information might have in terms of counter-ops to disrupt the ability of these people to continue piracy would seem worth pursuing.

It was an ANALOGY (none / 0) (#38)
by Steve M on Wed Apr 22, 2009 at 09:20:30 AM EST

and I'd hope people would have better things to do than play silly word games like "OMG, you equated him with a terrorist!"

The point is that just as our problem with bin Laden is not a lack of evidence, but a lack of ability to bring him to justice, we don't have some kind of secret police force in Somalia that has the opportunity to round up all sorts of pirate middle-men if only someone would give us their names.


a p[oor analogy, though (none / 0) (#40)
by Bemused on Wed Apr 22, 2009 at 10:11:53 AM EST

both because there is no particular factual basis for comparing this kid's position with that of an al-Qaeda operative and because it can't be read in way other than equating him to a terrorist.

Again, your assumption that there are not means to bring people above Muse "to justice" does not appear to be based on anything substantive and you ignore the potential for using information to thwart piracy even if it isn't through prosecutions. Learning who has done what and how it was done can often be used to prevent them from doing it again, which would appear tome to be an almost universally desired goal.

I raised these points in the context of how his attorneys will likely seek to obtain the best possible result for him. There is NO reason whatsoever to believe that law enforcement is not eager to obtain information from Muse and that agreeing to provide it might prove beneficial to him in terms of final disposition. If you want to inform the authorities that as an expert in their field you see no possible use for his information go right ahead.

Oh please (none / 0) (#41)
by Steve M on Wed Apr 22, 2009 at 10:22:23 AM EST

The idea that YOUR educated guess is any more valid than my educated guess about what actionable intelligence might be obtained from this pirate is laughable. Get off your "expert in their field" high horse already.


: my educated guess (none / 0) (#42)
by Bemused on Wed Apr 22, 2009 at 10:29:12 AM EST

is merely that law enforcement will be extremely eager to debrief him for extremely obvious reasons and that eagerness will be helpful to him in negotiating the best possible outcome.
Whether the information he would provide would ultimately prove helpful in apprehending or prosecuting others or in designing operations to thhwart certain pirates is something neither of us (or law enforcement) knows at this time. That does not mean anyone in a position to make the decision would decide, "well let's not even bother trying to talk to him because there is no chance his information can be of any possible use."
I'd say it is as close to a certainty as things get that authorities will want to talk to him and will offer concessions in exchange.

Funny (none / 0) (#33)
by jbindc on Wed Apr 22, 2009 at 08:49:10 AM EST

His mother says he's 16.

Muse's mother said she has no records to prove his age, but she and the teen's father say he is 16. "I never delivered my babies in a hospital," she said.
A classmate, however, said he believed Muse could be older -- and that he studied English at school.
"I think he was one or two years older than me, and I am 16," said Abdisalan Muse, reached by telephone in Galkayo. "We did not know him to be a pirate, but he was always with older boys, who are likely to be the ones who corrupted him."
It is rare for Somalis to have formal birth records, and U.S. officials did not say on what basis they believe him to be 18 or older.

I was not born in a hospital either (none / 0) (#34)
by Capt Howdy on Wed Apr 22, 2009 at 08:53:43 AM EST

but I know how old I am


But (5.00 / 1) (#43)
by jbindc on Wed Apr 22, 2009 at 11:30:08 AM EST

Do your parents disagree on how old you are? And do you have classmates (who know their age) state that you were ahead of them in school, so we could guess your age?

I don't know who's right here, but obviously both sides are interested in selling their story, since it would make a big difference in how he is tried and how he is potentially punished.


Well... (none / 0) (#35)
by CoralGables on Wed Apr 22, 2009 at 09:04:24 AM EST

unless you have a birth certificate, you only "think" you know how old you are. I'm fairly certain you weren't old enough at the time to remember when you were born ;)


in fact I did not have a birth certificate (none / 0) (#36)
by Capt Howdy on Wed Apr 22, 2009 at 09:09:34 AM EST

until I got my first job. I like showing it to people. I signed it.
still.
there are other people who do know how old I am and as far as I know there has never been any disagreement.


: about the time of day, disagreement (none / 0) (#37)
by Capt Howdy on Wed Apr 22, 2009 at 09:11:03 AM EST

I can never know my true rising sign.
sigh
the year however has never been in dispute.