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April 21, 2009

Might the Somali pirate have an Apprendi claim to try to thwart his federal prosecution?

This latest news from New York federal courts all of a sudden gives me a great excuse to end my afternoon with a little pirate blogging from Apprendi-land:

A Somali teenager accused of holding hostage a U.S. ship captain in the Indian Ocean after an attempted hijacking will be tried as an adult in New York on piracy charges, a U.S. judge ruled on Tuesday.

Abduwali Abdukhadir Muse, the sole surviving accused pirate from the foiled bid to hijack huge U.S. container ship the Maersk Alabama earlier this month, was put in custody until his next court appearance on May 21.

Muse is charged with piracy, conspiracy to seize a ship by force, conspiracy to commit hostage taking and related firearms offenses.  He faces a maximum sentence of life in prison if convicted....

Muse appeared at a hearing in Manhattan federal court after being brought to New York by U.S. authorities late on Monday.  Parts of the hearing were closed to the public due to questions about whether Muse was less than 18 years old.

Defense attorney Philip Weinstein said he spoke to Muse's father in Somalia, who said his son is 15 years old but prosecutors said Muse told the FBI he was over 18.  U.S. Magistrate Judge Andrew Peck eventually ruled Muse is 18 years old.

As all sentencing fans know, Apprendi holds that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  Though some might be inclined to argue that the age of the Somali pirate use is a "jurisdictional fact" not subject to Apprendi, functionally a determination of Muse's age is highly consequential to his fate.  And, though I doubt Muse's attorneys would want this age determination made by a jury, I am certain he would prefer that the proof standard on this issue was "beyond a reasonable doubt."

Does anyone know if the proof standard was discussed or debated before Judge Peck in today's hearing?  Does anyone know whether and how Muse's attorneys might appeal this determination at this stage of the proceedings?

One recent related post:

UPDATE:  I just found this effective new AP article suggesting good reasons to wonder about the proof surrounding Muse's age, which in turn suggests that the applicable proof standard for Muse's age could be very important going forward:

Muse's personal details are murky, with his parents in Somalia insisting he was tricked into getting involved in piracy.  His age also remained unclear. 

His parents said he is only 16.  U.S. law enforcement said he is at least 18 and a federal judge agreed Tuesday, ruling that Muse is an adult and that the case can proceed in open court.  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....

In New York, legal experts said the age issue will play a key role as the case develops.

"Age very much matters to how this case will be treated and how he himself will be treated in both the short and long term," said Daniel Richman, professor of Law at Columbia University Law School.  He said it was important from a federal prosecutor's perspective on getting him treated as an adult to "avoid difficult and cumbersome proceedings."

Karen Greenberg, executive director of the Center on Law and Security at New York University's Law School, said that the case could bring the U.S. under international criticism.  "If he is a juvenile and he is tried as an adult and given life imprisonment, it will not help the reputation we are trying hard to reform," she said. "International law is more lenient when it comes to juveniles and we already take criticism."

April 21, 2009 at 06:07 PM | Permalink


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Somalis are world famous for their truthfulness.


End the debate already.



Why is he laughing when he is in so much trouble? He is thinking the comforting thought, I have the total protection and immunity of the vile American lawyer traitor. Come the next terror attack encouraged by Obama's appeasement, all accounts get settled with the lawyer hierarchy.

Posted by: Supremacy Claus | Apr 21, 2009 9:30:51 PM

He was there. He had a gun. He retrieved the captain after the latter's escape attempt. There are video recordings. There is no controversy. The trial should take an hour. I predict it will take a year.

There will be much hand wringing, rending of clothing, strewing of ashes. It already began by the terrorist lover lawyers quoted in the article.

Posted by: Supremacy Claus | Apr 21, 2009 10:52:31 PM

"U.S. law enforcement said he is at least 18" What, did they take a cross-section and count the rings? Radio-carbon dating? How the heck do they know? I agree that this issue seems like it will turn on who has the burden of proof, what that burden is, and what evidentiary rules apply. I don't see how the Magistrate Judge could reach a final conclusion on this issue so soon. Has the kid's counsel really had a meaningful opportunity yet to pursue evidence to support his claim? (Imagine how much "rent" could be sought on boondoggle trips to exotic Somalia!)

Posted by: Anon | Apr 22, 2009 10:38:17 AM

Now we know that Supremacy Claus is not only off his rocker but a racist to boot.

Posted by: reader | Apr 22, 2009 4:30:47 PM

Anon: Please read the conclusions in the abstract to which I linked above.


"...bone age estimation based on the study of the development of the medial clavicular epiphysis may be a useful tool in forensic age identification in living individuals, especially if the age of the subject is about the end of the second or the beginning of the third decade of life (e. g. in determining the applicability of adult or juvenile penal systems)."

I hope that helps.

I am a five minute racist. All "-isms" are accurate folk statistics, 80% true, 80% of the time. After 5 minutes, I become blind to race. I am also a five minute reverse racist. Until proven otherwise, recent African immigrants are superior to American whites in morality, speak the King's English, have excellent upbringings, thrive in their enterprise, and in their Republican affiliation. All -isms are upheld by the rarity of their exceptions.

Reader, where is the evidence of racial bias? I am not being sarcastic, point it out.

I am not a five minute but a permanent lexist. I love the lawyer.

Posted by: Supremacy Claus | Apr 24, 2009 12:58:34 AM

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