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February 16, 2011

Somali pirate gets sentence of nearly 34 years in federal prison

As detailed in this Bloomberg report, "Somali pirate Abduwali Muse was sentenced to 33 years and nine months in prison for hijacking the container ship Maersk Alabama in the Indian Ocean in 2009." Here is more:

U.S. District Judge Loretta Preska in New York handed down the sentence today.  Muse pleaded guilty in May to two counts of hijacking maritime vessels, two of kidnapping and two of hostage taking.  Prosecutors said he led pirates who captured the Maersk Alabama and held its captain, Richard Phillips, for five days.

The sentence is at the top of a range in an arrangement between Muse’s lawyers and prosecutors. The defense asked for the minimum, 27 years.  The government sought the maximum because of what it called the “extraordinarily depraved and violent nature of Muse’s crimes.”

Muse and his companions boarded a ship in the Indian Ocean and took hostages, with Muse threatening to kill everyone aboard with an improvised explosive device if the authorities came, according to prosecutors....

Muse was captured by authorities after the arrival of the USS Bainbridge. Snipers killed his three accomplices, and the Federal Bureau of Investigation brought Muse to New York.

His attorneys, Fiona Doherty and Philip Weinstein, said that their client grew up in poverty in Somalia, where his father sometimes tied him to a tree as punishment.  Muse worked in fishing communities in the coastal area known as Puntland, where pirate gangs have their roots, his attorneys said. He was driven to piracy by poverty, they said.

Muse was 16 at the time of the hijacking, his lawyers said, A U.S. magistrate judge rejected the claim that he was underage.  Assistant U.S. Attorney Brendan McGuire said last year that he told one of his hostages he was 24.

February 16, 2011 at 01:27 PM | Permalink

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"His attorneys, Fiona Doherty and Philip Weinstein, said that their client grew up in poverty in Somalia, where his father sometimes tied him to a tree as punishment."

The all-purpose excuse shows up yet again.

This guy is a terrorist, a hostage-taker and a pirate, but we should have "compassion," right? C'mon guys, don't go blank on me now!

I'll bet he had brain lesions, too.

Posted by: Bill Otis | Feb 16, 2011 2:55:21 PM

From the Bloomberg Report: "The judge said that a longer sentence was necessary to deter piracy."

I wonder if anybody, including the judge, actually believes this sentence will deter piracy in a poverty stricken war torn country half a world away. I can see the 34 years but don't give a dumb ass explanation like that.

Posted by: Robert | Feb 16, 2011 7:17:00 PM

the deterent would have been a lot better if his name had simply been listed along with the other two who were KILLED when the ship was retaken..... not to mention a hell of a lot cheaper.

Posted by: rodsmith | Feb 16, 2011 8:52:22 PM

Bill, would you be happy if the defense attorneys said something like this: "you honor, we were appointed to represent this miscreant; but for that, we wouldn't go near him. Hee deserves the full fury and wrath of the government. We join the government's recommendation. Nothing excuses or explains our client's crimes. That he grew up in poverty in the poorest nation in the world is hardly an excuse. On the contrary it is an aggravating factor. Show this scum no mercy."


How's that, Bill?

Posted by: anon1 | Feb 16, 2011 8:55:25 PM

anon 1 --

You write your stuff, and I'll write mine. How's that?

To answer your question, I would be more satisfied in the defense could just one time lay off the poverty and bad childhood stuff. Get off the word processor and do some original thinking, for cryin' out loud.

Posted by: Bill Otis | Feb 17, 2011 12:03:49 AM

Bill,

Under 18 USC s 3553(a), the personal history and characteristics of the defendant are relevant to sentencing. Would you like the defendant's counsel to ignore a defendant's personal history and then face an ineffective counsel claim for failing to discuss a sentencing factor that Congress deemed relevant to sentencing? For cryin' out loud, accept that everyone has a job to do, both defense counsel and the prosecutor and let each do his/her job without the snarky comments. There are AUSAs that recognize the role of defense counsel and don't take cases personally and then there are the Bill Otis AUSAs for whom every case is personal.

Posted by: Jay | Feb 17, 2011 10:29:24 AM

OK, I'll bite: Your honor, my client was born and raised in a collapsed society that borders on anarchy. During the cold war it was a client state of the Soviet Union, but when the Soviet Union collapsed, so did Somalia. He has never experienced anything like a legitimate government; instead, he grew up in a homeland dominated by thuggish warlords who hold sway by force, intimidation, and by spreading around what little wealth they can extract out of others. When his entire world view is shaped by such circumstances, who can be surprised that he sees piracy as no more or less legitimate than any other economic activity? Whenever he looked around the poverty-stricken misery that he called home, the only people who had any respect, who had enough food, and who prospered, were those engaged in piracy--an activity that, while indefensible to us, posed little risk of actual violence. And now we want him to think and act like a good American, we want him to think, like we do, that what he was doing was somehow the worst thing on earth. He has probably seen far worse things that can be done to people than we ever will, and it is no surprise that he would have gotten involved with this type of activity.

Etc.

Posted by: Anonymous | Feb 17, 2011 11:39:32 AM

anonymous, an effective and moving plea. I was going to impose a 34-year sentence, on your client but upon consideration of your argument, I sentence the defendant to a term of 20 years.

Posted by: anon1 | Feb 17, 2011 12:21:02 PM

Jay --

"There are AUSAs that recognize the role of defense counsel and don't take cases personally and then there are the Bill Otis AUSAs for whom every case is personal."

There are those who applaud defense counsel's zeal, but find the identical characteristic is the prosecutor to be "taking it personally."

Since I use my real name here, you can search for yourself to see how many times any court, anywhere, accused me of taking a case "personally" or in any other way in a manner that was unprofessional.

Happy hunting.

Posted by: Bill Otis | Feb 17, 2011 2:33:18 PM

Anonymous --

When I asked for original thinking, I didn't mean to just make stuff up.

"Whenever he looked around the poverty-stricken misery that he called home, the only people who had any respect, who had enough food, and who prospered, were those engaged in piracy--an activity that, while indefensible to us, posed little risk of actual violence."

Are you serious in maintaining that piracy and hostage-taking, in this case or others, "pose little risk of actual violence"?

"And now we want him to think and act like a good American..."

Where in the indictment was he charged with failure to "act like a good American?" Just refraining from forcible hostage taking would do, ya know. We're not demanding that he join the Boy Scouts.

"...we want him to think, like we do, that what he was doing was somehow the worst thing on earth."

If it were the worst thing on earth, he would be getting the death penalty, not a term of imprisonment. But I suppose if you can't win with facts, there's always exaggeration.

"He has probably seen far worse things that can be done to people than we ever will..."

When I presented a case in federal court, "probably" didn't get it done. But for however that may be, a person of conscience would resolve to reject, rather than mimic, the evil around him.

"...and it is no surprise that he would have gotten involved with this type of activity."

Love your whistling past the nasty details with "this type of activity." But, again, the question is not whether the defendant's behavior was a "surprise." Malevolent behavior from malevolent people is not a surprise, that's for sure. But a civilized legal system holds it and them to account anyway.

Posted by: Bill Otis | Feb 17, 2011 2:51:45 PM

anon1 --

As you amply demonstrate, there's a reason the law does not entrust sentencing to defense lawyers.

Posted by: Bill Otis | Feb 17, 2011 2:54:47 PM

Bill, and as you more than amply demonstrate, the law does not entrust sentencing to prosecutors.

Posted by: anon1 | Feb 17, 2011 4:29:24 PM

anon1 --

"Bill, and as you more than amply demonstrate, the law does not entrust sentencing to prosecutors."

1. We all knew that the law entrusts sentencing to those in the judicial, not the executive, branch. I think what you intended to say -- by way of mimicing me -- is that, "as you more than amply demonstrate, there is a reason the law does not entrust sentencing to prosecutors."

2. Still, your statement is ironic. Numerous defense types who comment here have said again and again that the law DOES effectively give prosecutors the power to sentence, through a combination of charging authority and mandatory minimus. Maybe you should check with your allies and get back to me.

3. Just so you'll know: I'm not a prosecutor and haven't been for more than a decade. Like hundreds of lawyers in private practice, including many defense counsel, I'm a former prosecutor.


Posted by: Bill Otis | Feb 17, 2011 4:56:44 PM

Pirates should be hanged at sea.

Posted by: federalist | Feb 17, 2011 8:30:26 PM

federalist --

"Pirates should be hanged at sea."

Not if they come from a "troubled background." In that event, they should be invited to the NACDL convention to be the guest speaker on: "Studies in Prosecutorial Abuse: Ignoring the Reasons That Piracy Is Not All That Bad."

I tried to inveigle some movement off the shopworn, "But I was poor!" excuse. You saw how far I got.

A significant segment of the defense bar appears to be stuck in an ideological rut about 50 miles deep.

Posted by: Bill Otis | Feb 17, 2011 11:46:26 PM

Bill--

How dare you call them "pirates"--that is an insensitive term. They're "stimulators of the local economy."

Really though, there's a question you haven't yet answered: what exactly was the defense supposed to do here? They pled guilty, but argued that 27 years is sufficient on the basis of factors that clearly fall within 3553(a). Poverty may be a tired argument, but it is certainly true here (it's Somalia for chrissake...calling it a "nation" is generous at times). Should the defense have just not raised it?

By the way, I don't think that a hostage-taker's background justifies knocking off a whole lot of time, if any--you and I are in agreement on that. But surely it isn't wrong for the defense to raise the issue as a vigorous advocate for their client, right? Just as it isn't wrong for the prosecution to raise issues that would raise a presumptive sentence?

Posted by: Res ipsa | Feb 18, 2011 2:28:33 PM

Res ipsa --

You should post more often.

The problem is that there is, so far as I can see, just not a lick of nuanced thinking left in defense allocution. Poverty this, poverty that. Brain lesions. Bad schools. Society stinks. America stinks. Meanwhile, every snarling miscreant is Jean Valjean.

Enough already.

Note to NACDL: everybody is NOT Jean Valjean -- a man whose sister's children were starving, who pilfered a loaf of bread for them using no violence, and who had a good, indeed a saintly, heart.

Somalia is a basket case, you bet, but what is the specific evidence that THIS DEFENDANT was destitute? What is the evidence that he became a pirate (oooops, economic stimulator) to provide subsistence, to himself or anyone? As opposed to getting a fat ransom to buy a bigger arsenal (or drugs or a BMW or whatever)? What is the evidence that violence was needed, much less this degree of violence? What is the evidence that poverty -- as opposed to, say, sadism -- lay behind his terroristic threats to the hostages?

What was the defense supposed to do? Well, that's one of the reasons I steered clear of criminal defense when I left the USAO years ago. I probably could have made good money -- better than I'm making now, for sure, and a lot better than I made with the government.

I don't care. It's just money. Life is short, and I have better things to do with my limited time on this earth than stand in front of a judge and tell him that a thug should get a shorter sentence because he was "forced" to do it out of poverty -- even though I have no idea whether that's true, and quite a few reasons to think it most certainly is NOT true.

There are zillions of people in this world who grow up poor. The huge majority don't become felons, much less violent felons, and still less economic stimulators. What this means is that poverty is at best a dicey excuse. Instead, as this story suggests, it's become the ever-present, no-thinking-needed, all-purpose excuse.

Thus provoked, I responded.

Posted by: Bill Otis | Feb 18, 2011 7:50:43 PM

As to the discussion upthread concerning the argument made by the defense attorneys that the poverty of the pirate is (or is not) an important issue at his sentencing, here are two links that speak to how the "market" drives Somali piracy:

http://www.npr.org/templates/story/story.php?storyId=103657301

Note the remark of the CEO of the shipping company whose ship had been hijacked: "He says he never considered paying that amount, because it was 'way, way, way above the market and way, way above what we knew was being paid for other ships and … for similar hijackings.'"

And the Somali Pirate Stock Exchange:

http://www.reuters.com/article/2009/12/01/us-somalia-piracy-investors-idUSTRE5B01Z920091201?pageNumber=1

Posted by: Fred | Feb 18, 2011 8:50:47 PM

If I can chime into what appears to be a close-to-dead thread, the point is not that he was poor so he had to do this to feed his starving family. The point is that he grew up in a place so lawless and corrupt that piracy was seen as a legitimate, or at least acceptable, trade--among the people where he lived, at least. Piracy is a mini-industry along parts of the Somali coast, and it involves many more people than just the hoodlums that jump onto the ships. These guys are just acting at the direction of whatever boss rules the area. There are others who act as negotiators with the shipping companies, there are people who are in charge of feeding and watching the hostages, etc.

This was not some kid who grew up in a democratic society who decided simply to flaunt the laws of that society. In fact, many people in that part of Somalia were making lots of money from piracy, because shipping companies were actually paying ransoms. So he hired on to what he saw as the best game in town.

And the thing about being tied to a tree by his father--what does a young man learn from this? Perhaps that the way you treat people is to brutalize and humiliate them into behaving the way you think they should. This is why the abuse he suffered at the hands of his father is mitigating.

Posted by: anonymous | Feb 19, 2011 12:25:30 AM

anonymous --

Your first two paragraphs amount to the typical, "Well, everyone else does it" defense. In this case, as in most others, that defense has two flaws.

First, it's factually false. Everyone else does NOT do it, not in Somalia and not anywhere. A miniscule portion of Somalis do it, that portion being street thugs who have found the high seas are more entertaining (and proftiable).

Second, it's no more mitigating than it was, e.g., for the Wall Street millionaire swindlers who, to quote you, "hired on to what [they] saw as the best game in town."

Didn't they ever. Rudimentary decency and morals optional. If other people got hurt, or lost their life savings or jobs or retirement, hey, look, boys will be boys, whether it's in the investment banking market or the hostage market.

Do you even hear yourself? This one in particular was a gem: "...there are people who are in charge of feeding and watching the hostages, etc." Ummm, you kinda forgot to mention the people who are in charge of degrading, raping and terrorizing them. But your memory in that regard is as good as most defense lawyers.

Your third paragraph is also a prize. You say, for example, "...the thing about being tied to a tree by his father--what does a young man learn from this? Perhaps that the way you treat people is to brutalize and humiliate them into behaving the way you think they should."

Well gee, anonymous, how "should" a hostage behave, exactly? I'd love to hear your answer to that one. But I digress. Nowhere is it written that a person must learn from harsh discipline as a child that harshness is the way to behave toward others. A lot of people -- a whole lot -- learn the OPPOSITE: that patience, restraint and good faith are the way to behave.

But not in the world of defense lawyering, where, at allocution, the lowest, basest, meanest denominator of morality comes rushing in right behind (and invited by) the "it's just a business" and "everybody does it" ploy.

So there we have it. Piracy -- a crime recognized universally and for centuries as a scourge -- is now to be treated as nothing worse than the Junior Chamber of Commerce for Young Somali Men on the Rise.

I just hope no one is wondering why this hoodlum got the max. This kind of gee whiz excuse making may go over well at the NACDL convention (and even better at the pirates convention), but normal people -- like, for example, the judge here -- are going to react differently.

Posted by: Bill Otis | Feb 19, 2011 4:21:17 AM

Why is piracy being rewarded with a standard of living in Federal prison 100 times better than he could have, free in Somalia? Slit his throat, at the scene in Somalia. Post the video on Al Jazeera. Out of respect for the culture of the Somali ocean entrepreneur. To deter.

Posted by: Supremacy Claus | Feb 20, 2011 8:47:54 AM

"... their client grew up in poverty in Somalia, where his father sometimes tied him to a tree as punishment."

The defendant does not learn to obey rules even from extreme punishment. He should be killed for the safety of others.

Posted by: Supremacy Claus | Feb 20, 2011 8:54:59 AM

Although this thread is almost certainly dead, I couldn't resist adding today's news for the amusement of those who would say that piracy is just the way a fellow on the rise in Somalia does business. After all, as part of this business -- so we have been told -- there is the "humanitarian pirate division," devoted to feeding and looking out after the hostages.

Well that's cool.

Here's today's news from the Humanitarian Pirate Gazette: http://www.msnbc.msn.com/id/41715530/ns/world_news-africa/?gt1=43001

Posted by: Bill Otis | Feb 22, 2011 1:49:46 PM

i saw that. Personally i think the boat should have been blow out of the water about 4 mins after it was captured. i'd have given the pirates 2 m ins to surrender...then 2 min's later if they refuesd destoroyed the boat. We'd only have to do it 1 or 2 times then american boats would be the last ones they would take...no profit in it...

Posted by: rodsmith | Feb 23, 2011 7:32:22 PM

Sometimes, rodsmith, you hit the nail right on the head.

Posted by: Bill Otis | Feb 26, 2011 6:29:25 PM

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