Ashley Bane | Note

In two factually similar cases, the United States Court of Appeals for the Fourth Circuit was tasked with determining whether the piracy statute, 18 U.S.C. § 1651, encompasses attacks on vessels in international waters when the attackers do not seize or rob the vessels. Both cases were on appeal from the United States District Court for the Eastern District of Virginia, where two district judges had reached divergent conclusions on the definition of piracy. In United States v. Dire, five Somali defendants were convicted of piracy (under 18 U.S.C. § 1651), attack to plunder a vessel (under 18 U.S.C. § 1659), and numerous other offenses in connection with their imprudent attack on a United States Navy ship on the high seas between Somalia and the Seychelles. Three defendants in an attack skiff, armed with a rocket-propelled grenade launcher and AK-47 assault rifles, launched an attack on the USS NICHOLAS, which was disguised as a merchant vessel. The crew of the USS NICHOLAS returned fire, captured the defendants in the skiff, and captured two additional defendants in a nearby “mother ship.” In United States v. Said, six defendants were charged with, among other offenses, piracy (under 18 U.S.C. § 1651) and attack to plunder a vessel (under 18 U.S.C. § 1659) for their attack on a Navy ship, the USS ASHLAND. The defendants in a skiff opened fire on the vessel in the Gulf of Aden. The USS ASHLAND’s crew returned fire and destroyed the skiff, killing one of the skiff’s passengers. The USS ASHLAND’s crew then took the remaining defendants into custody.

In both cases, the defendants argued that their attacks on the U.S. Navy ships did not constitute piracy because they did not seize or rob the vessels. The district court in Dire denied the defendants’ motion to dismiss the piracy count and held that the crime of piracy includes any violent acts perpetrated for private ends on the high seas. In Said, the district court granted the defendants’ motion to dismiss the piracy count, holding that robbery is an essential element of the crime of piracy. In tandem opinions, the United States Court of Appeals for the Fourth Circuit held that any illegal acts of violence committed for private ends on the high seas constitutes piracy, even in the absence of robbery. United States v. Dire, 680 F.3d 446, 459, 469, 2012 AMC 1217, 1236, 1251 (4th Cir. 2012); United States v. Said, 680 F.3d 374, 375, 2012 AMC 1266, 1267 (4th Cir. 2012).