United States v. Mohammad Shibin

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4652

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MOHAMMAD SAAILI SHIBIN, a/k/a Khalif Ahmed Shibin, a/k/a
Mohammad Ali, a/k/a Ali Jama,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:11-cr-00033-RGD-DEM-1)

Argued: May 14, 2013 Decided: July 12, 2013

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Motz and Judge Floyd joined.

ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI, P.C.,
Norfolk, Virginia, for Appellant. Benjamin L. Hatch, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia; Joseph E. DePadilla, Brian J. Samuels, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
NIEMEYER, Circuit Judge:

On May 8, 2010, Somali pirates seized the German merchant

ship the Marida Marguerite on the high seas, took hostages,

pillaged the ship, looted and tortured its crew, and extorted a

$5-million ransom from its owners. Mohammad Saaili Shibin,

while not among the pirates who attacked the ship, boarded it

after it was taken into Somali waters and conducted the

negotiations for the ransom and participated in the torture of

the merchant ship’s crew as part of the process.

On February 18, 2011, Somali pirates seized the American

sailing ship the Quest on the high seas. A U.S. Navy ship

communicated with the pirates on board in an effort to negotiate

the rescue of the ship and its crew of four Americans, but the

pirates referred the Navy personnel to Shibin as their

negotiator. When the Navy ship thereafter sought to bar the

pirates from taking the Quest into Somali waters, the pirates

killed the four Americans.

Shibin was later located and arrested in Somalia and turned

over to the FBI, which flew him to Virginia to stand trial for

his participation in the two piracies. A jury convicted him on

15 counts, and he was sentenced to multiple terms of life

imprisonment.

On appeal, Shibin contends that the district court erred by

refusing (1) to dismiss the piracy charges on the ground that

2
Shibin himself did not act on the high seas and therefore the

court lacked subject-matter jurisdiction over those charges; (2)

to dismiss all counts for lack of personal jurisdiction because

Shibin was forcibly seized in Somalia and involuntarily removed

to the United States; (3) to dismiss the non-piracy counts

involving the Marida Marguerite because “universal jurisdiction”

did not extend to justify the U.S. government’s prosecution of

those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s

testimony about prior statements made to him by a Somali-

speaking witness through an interpreter because the interpreter

was not present in court.

We conclude that the district court did not err in refusing

to dismiss the various counts of the indictment and did not

abuse its discretion in admitting Agent Coughlin’s testimony.

Accordingly, we affirm.

I

The Piracy of the Marida Marguerite

As the Marida Marguerite was making way in the Indian Ocean

on a trip from India to Antwerp and preparing to join a

protected convoy to transit the Gulf of Aden, she was attacked

by Somali pirates in a small, high-speed boat. The Marida

Marguerite was manned by a crew of 22 from Bangladesh, India,

and Ukraine, and was carrying a shipment of benzene and castor

oil. As the Marida Marguerite attempted evasive maneuvers, the

3
pirates fired two rocket-propelled grenades at the ship,

prompting the ship’s captain to surrender. After taking control

of the ship in international waters, the pirates, armed with AK-

47s, forced the crew to head for Somali waters. While in route,

they looted the ship, including the personal valuables of crew

members.

The Marida Marguerite arrived first at an anchorage near

Hafun on the east coast of Somalia, where “a multitude” of other

hijacked ships were anchored. At that location, additional

pirates boarded the ship with more weapons, including assault

weapons, rocket-propelled grenades, and two large stationary

machine guns. The ship was then moved to an anchorage off

Garaad, a town controlled by pirates, where Shibin boarded the

ship. It was ultimately moved to Hobyo, on the southeast coast

of Somalia. Shibin remained on board for over 7 months (except

for a vacation of 10 to 12 days during the summer) until the

ransom was received.

During the period that the ship was held captive, Shibin,

who had a high position among the pirates, served principally as

the negotiator, using tactics that included the psychological

and physical torture of the crew. Ultimately, Shibin was able

to extort a $5-million ransom from the ship’s owners, and the

money was air-dropped at the ship. After the money was

confirmed, the pirates released the ship to a waiting U.S.

4
frigate, which escorted it to safety. Shibin was among the last

of the pirates to disembark.

For a period during the seizure of the Marida Marguerite

and its crew, Shibin was deposed as the negotiator, and an

“investor” took over. For that period, Shibin was demoted to

the role of a “regular” or “normal” pirate and carried an AK-47

as he stood guard over the hostages. After a short period of

time, however, Shibin was reappointed as the negotiator, and he

completed the deal for the $5-million ransom in December 2010.

The Piracy of the Quest

Several months later, on February 18, 2011, as a U.S.

sailing vessel, the Quest, was making way from India to Oman as

part of an international yacht rally, a group of Somali pirates

hijacked the ship. The ship was manned by four Americans -- its

owners Scott and Jean Adams, and their friends Phyllis Macay and

Robert Riggle. The pirates, carrying automatic weapons and a

rocket-propelled grenade launcher, boarded the Quest in the

Arabian Sea, roughly 400 miles from Oman and 900 miles from

Somalia. The pirates planned to take the ship back to Somalia,

where their colleague Shibin would negotiate a ransom.

The U.S. Navy learned of the Quest’s seizure, and several

Navy ships began shadowing it. After Navy personnel were able

to establish bridge-to-bridge radio communications with the

5
pirates, the pirates told the Navy that they lacked the

authority to negotiate and that their job was to capture vessels

and hostages and return them to Somalia where their English-

speaking negotiator would arrange a ransom. As the pirates and

the Quest continued towards Somali territorial waters, the Navy

asked the pirates for the name and contact information of their

negotiator. The pirates told the Navy that the person to

contact was Shibin, and they provided the Navy with Shibin’s

cell phone number. The Navy did not, however, then attempt to

call him, for strategic reasons.

By the morning of February 22, 2011, as the Quest was

nearing Somali waters, Navy personnel advised the pirates that

they had to stop. When the pirates did not comply, the Navy

attempted to position one of its ships to block the pirates,

prompting the pirates to fire a rocket-propelled grenade at the

Navy. As the Navy continued to close in, but before it reached

the Quest, the pirates shot and killed all four Americans on

board.

Shibin’s Capture

Following the attack on the Quest, FBI agents worked to

collect evidence of Shibin’s involvement in the Quest piracy.

During the investigation, they learned from German law

enforcement authorities about Shibin’s possible involvement in

6
the hijacking of the Marida Marguerite. They also learned from

a pirate and from piracy investors that Shibin had planned to

invest his share of the Marida Marguerite ransom in the Quest

piracy. Such an investment would entitle him to a return as a

portion of the eventual ransom.

On April 4, 2011, “Host Nation Defense Forces” in Somalia,

acting in cooperation with the FBI, arrested Shibin in the

northern city of Bosasso, in the Puntland region of Somalia.

Earlier, they had recovered his cell phone and had turned it

over temporarily to the FBI. Within a few hours of Shibin’s

arrest, two FBI agents arrived in Bosasso to question Shibin

while he was still in the Defense Forces’ custody. They

questioned Shibin three times over the course of three days.

Shibin stated that he had used a cell phone with a SIM number

matching the phone number that the pirates had given the Navy,

but he claimed to have lost the phone several weeks before in a

taxi in Zambia. Shibin told the agents that he had operated as

the negotiator at one time during the Marida Marguerite piracy,

for which he had received $30,000. He denied any involvement in

the hijacking of the Quest, but admitted to conducting internet

searches on his phone regarding the Quest and its crew simply as

a matter of curiosity. He pointed out that he had an “auto-

alert” feature on his phone that sent him messages about

hijackings in and around Somali waters.

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 With Shibin’s permission, the FBI agents searched his

luggage, obtaining bank records and other items relevant to the

piracies. The bank records showed that Shibin had deposited

$37,000 on January 6, 2011, shortly after the payment of the

Marida Marguerite ransom, and that he had withdrawn $19,952

between January 10 and March 1, 2011.

The cell phone, which Host Nation Defense Forces

temporarily turned over to the FBI for its investigation, had

the same SIM number that had been provided to the Navy by the

pirates on the Quest. Shibin’s “contacts” list contained

entries for several of the investors in the Quest piracy. The

cell phone revealed that during the time when the Quest was in

the pirates’ custody, one of the Quest investors had texted

Shibin, asking him to call. Shibin’s cell phone was also in

frequent contact with various other investors, using both cell

phone calls and text messages. On the day that the pirates

seized the Quest, Shibin received a text message stating,

“Sarindaaq captured Americans.” Sarindaaq was the leader of the

pirates who had physically seized the Quest. The cell phone

indicated that over the next several days, from February 19 to

21, Shibin conducted internet searches on topics like “Hijacked

S/V Quest value,” “Jean and Scott Adams profile,” “address of

hijacked S/V Quest owner,” and “Jean and Scott Adams telephone

number.”

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 On April 6, 2011, the Host Nation Defense Forces

transferred custody of Shibin to the Bosasso Police Department,

and the Bosasso Police in turn transferred custody of Shibin to

the FBI. The FBI placed Shibin under arrest for charges related

to the Quest piracy and transported him to the Oceana Naval Air

Station in Virginia Beach, Virginia.

Prosecution

Shibin was initially charged in a three-count indictment

for his alleged role in the piracy of the Quest. A later

superseding indictment, returned on August 17, 2011, added

charges relating to the piracy of the Marida Marguerite, as well

as additional charges relating to the piracy of the Quest.

Counts 1 through 6, arising from the piracy of the Marida

Marguerite, charged the following crimes:

1. Piracy under the law of nations, in violation of
18 U.S.C. §§ 1651 and 2;

2. Conspiracy to commit hostage taking, in violation
of 18 U.S.C. § 1203(a);

3. Hostage taking, in violation of 18 U.S.C. §§
1203(a) and 2;

4. Conspiracy to commit violence against maritime
navigation, in violation of 18 U.S.C. §
2280(a)(1)(H);

5. Violence against maritime navigation, in
violation of 18 U.S.C. §§ 2280(a)(1)(A) and 2;
and

6. Use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2.

9
Counts 7 through 15, arising from the piracy of the Quest,

charged the following crimes:

7. Piracy under the law of nations, in violation of
18 U.S.C. §§ 1651 and 2;

8. Conspiracy to commit hostage taking, in violation
of 18 U.S.C. § 1203(a);

9. Hostage taking, in violation of 18 U.S.C. §§
1203(a) and 2;

10. Conspiracy to commit kidnapping, in violation of
18 U.S.C. § 1201(c);

11. Kidnapping, in violation of 18 U.S.C. §§
1201(a)(2) and 2;

12. Conspiracy to commit violence against maritime
navigation, in violation of 18 U.S.C. §
2280(a)(1)(H);

13. Violence against maritime navigation, in
violation of 18 U.S.C. §§ 2280(a)(1)(A) and 2;

14. Use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2; and

15. Use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 924(c) and 2.

Shibin filed multiple pretrial motions, including a motion

to dismiss the piracy charges in Counts 1 and 7, because the

government did not allege that Shibin himself acted on the high

seas, and a motion to dismiss all charges for lack of

jurisdiction. The district court deferred ruling on the motion

to dismiss the piracy charges until hearing evidence at trial

and denied the other motions. Shibin renewed all motions to

10
dismiss at the close of the government’s case and again prior to

sentencing, all of which the court denied.

During the course of the trial, which lasted ten days,

Shibin called one witness, pirate and family member Mohamud

Salad Ali, who was one of the leaders of the Quest piracy.

While Salad Ali testified that he never personally asked for or

formed an agreement with Shibin to be the negotiator for the

Quest, he acknowledged, on cross examination, that the Quest

investors could have selected Shibin as the negotiator without

his knowledge. Salad Ali denied having told the FBI during

earlier interviews that he had spoken with Shibin before going

to sea and had told Shibin that he would call when he had

“prey,” meaning a captured vessel; that he had told Shibin that

he was going to sea to hijack a ship and that Shibin had replied

that he was ready to be their translator; and that he had told

Shibin that Shibin would be the negotiator.

In rebuttal, the government called FBI Agent Kevin

Coughlin, who had participated in the earlier interviews with

Salad Ali and had recorded what he had said. Agent Coughlin

testified, over Shibin’s objection, that Salad Ali had in fact

made the statements he denied. Shibin objected because Coughlin

reported what an interpreter said, not Salad Ali, and the

interpreter was not present to be cross examined. Agent

Coughlin explained that he used an FBI Somali linguist to

11
translate both his questions and Salad Ali’s answers and that

Salad Ali did not appear to have any trouble understanding the

questions.

The jury convicted Shibin on all counts, and the district

court sentenced him to 12 terms of life imprisonment, two of

which were to be served consecutively; a consecutive 120-month

term of imprisonment; and several concurrent 240-month terms.

This appeal followed.

II

Shibin contends first that he did not “commit the crime of

piracy,” as charged in Counts 1 and 7, because, “according to

statutory text, legislative history, and international law, [he]

could only be convicted of aiding and abetting piracy if the

government proved that he was on the high seas, and while on the

high seas, facilitated piratical acts.”

The government observes that there is no dispute that the

piracies in this case occurred on the high seas beyond the

territorial waters of Somalia, which are generally defined as

the waters within 12 nautical miles of the coast. It contends

that Shibin is liable as a principal in those piracies, even

though he did not personally venture into international waters,

because he “intentionally facilitated” and thereby aided and

abetted the piracies. The government argues that liability for

12
aiding and abetting piracy is not limited to conduct on the high

seas, explaining:

That no such limitation is imposed is sensible. Once
members of a joint criminal enterprise trigger the
universal jurisdiction that applies to piracy on the
high seas, both international and domestic law
prudently include in the scope of the crime all those
persons that worked together to commit it, including
those leaders like Shibin who facilitate the crime and
without which the crime itself would not be possible.

In Counts 1 and 7, Shibin was charged with committing and

aiding and abetting the crime of piracy, in violation of 18

U.S.C. §§ 1651 and 2. Section 1651 provides:

Whoever, on the high seas, commits the crime of piracy
as defined by the law of nations, and is afterwards
brought into or found in the United States, shall be
imprisoned for life.

18 U.S.C. § 1651. And § 2 provides:

Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.

18 U.S.C. § 2(a).

The district court’s jurisdiction over these crimes arises

from “universal jurisdiction.” Universal jurisdiction is an

international law doctrine that recognizes a “narrow and unique

exception” to the general requirement that nations have a

jurisdictional nexus before punishing extraterritorial conduct

committed by non-nationals. United States v. Hasan, 747 F.

Supp. 2d 599, 608 (E.D. Va. 2010), aff’d sub nom. United States

v. Dire, 680 F.3d 446 (4th Cir. 2012). It allows any nation

13
“jurisdiction to define and prescribe punishment for certain

offenses recognized by the community of nations as a universal

concern.” Restatement (Third) of Foreign Relations Law § 404

(1987). Universal jurisdiction requires “not only substantive

agreement as to certain universally condemned behavior but also

procedural agreement that universal jurisdiction exists to

prosecute a subset of that behavior.” Sosa v. Alvarez-Machain,

542 U.S. 692, 762 (2004) (Breyer, J., concurring in part and

concurring in the judgment). The parties agree that piracy is

subject to universal jurisdiction, as pirates are considered

hostis humani generis, the enemies of all humankind. See

Harmony v. United States, 43 U.S. (2 How.) 210, 232 (1844).

The issue presented by this appeal is whether Shibin, whose

conduct took place in Somalia and in Somalia’s territorial

waters, may be prosecuted as an aider and abettor of the

piracies of the Marida Marguerite and the Quest, which took

place on the high seas. Shibin agrees that if his conduct had

indeed taken place on the high seas, he could have been found

guilty of aiding and abetting piracy. But in this case he

participated in the piracies by conduct which took place only in

Somalia and on the Marida Marguerite while it was located in

Somali territorial waters. The issue thus reduces to a question

of whether the conduct of aiding and abetting § 1651 piracy must

itself take place on the high seas.

14
 Section 1651 punishes piracy as that crime is defined by

the law of nations at the time of the piracy. See Dire, 680

F.3d at 469 (noting that Ҥ 1651 incorporates a definition of

piracy that changes with advancements in the law of nations”).

In Dire, we held that Article 101 of the United Nations

Convention on the Law of the Sea (“UNCLOS”) accurately

articulates the modern international law definition of piracy.

Id. at 459, 469. *

Article 101 of UNCLOS provides:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any
act of depredation, committed for private ends by
the crew or the passengers of a private ship or a
private aircraft, and directed:

(i) on the high seas, against another ship or
aircraft, or against persons or property on
board such ship or aircraft;

(ii) against a ship, aircraft, persons or
property in a place outside the
jurisdiction of any State;

(b) any act of voluntary participation in the
operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or
aircraft;

*
Although over 160 nations are parties to UNCLOS, making up
an “overwhelming majority of the world,” the United States has
not signed or ratified the Convention because “of its
disagreement with the deep seabed regime setout in Part XI of
the Convention.” Hasan, 747 F. Supp. 2d at 619 (citing 1 Thomas
J. Schoenbaum, Admiralty and Maritime Law § 2–2 (4th ed. 2004)).

15
 (c) any act of inciting or of intentionally
facilitating an act described in subparagraph (a)
or (b).

UNCLOS art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397, 436 (emphasis

added). Thus, as relevant here, Article 101(a) defines piracy

to include specified acts “directed on the high seas against

another ship . . . or against persons or property on board such

ship,” and Article 101(c) defines piracy to include any act that

“intentionally facilitat[es]” any act described in Article

101(a). The parties agree that the facilitating conduct of

Article 101(c) is “functionally equivalent” to aiding and

abetting criminal conduct, as proscribed in 18 U.S.C. § 2.

While Shibin’s conduct unquestionably amounted to acts that

intentionally facilitated Article 101(a) piracies on the high

seas, he claims that in order for his facilitating conduct to

amount to piracy, his conduct must also have been carried out on

the high seas. The text, however, hardly provides support for

this argument. To the contrary, the better reading suggests

that Articles 101(a) and 101(c) address distinct acts that are

defined in their respective sections.

Article 101(a), which covers piracies on the high seas,

explicitly requires that the specified acts be directed at ships

on the high seas. But Article 101(c), which defines different

piratical acts, independent of the acts described in Article

101(a), is linked to Article 101(a) only to the extent that the

16
acts must facilitate Article 101(a) acts. Article 101(c) does

not limit the facilitating acts to conduct on the high seas.

Moreover, there is no conceptual reason why acts facilitating

high-seas acts must themselves be carried out on the high seas.

The text of Article 101 describes one class of acts involving

violence, detention, and depredation of ships on the high seas

and another class of acts that facilitate those acts. In this

way, Article 101 reaches all the piratical conduct, wherever

carried out, so long as the acts specified in Article 101(a) are

carried out on the high seas.

We thus hold that conduct violating Article 101(c) does not

have to be carried out on the high seas, but it must incite or

intentionally facilitate acts committed against ships, persons,

and property on the high seas. See also United States v. Ali,

__ F.3d __, No. 12-3056, slip op. at 12, 20 (D.C. Cir. June 11,

2013) (similarly interpreting Article 101(c) in the course of

holding that the liability of an aider and abettor of a § 1651

piracy “is not contingent on his having facilitated these acts

while in international waters himself”).

Citing UNCLOS Article 86, Shibin argues that we should read

a “high-seas” requirement into the definition of the

facilitating acts described in Article 101(c). Article 86

provides: “The provisions of this Part [Part VII, “High Seas,”

which includes Article 101] apply to all parts of the sea that

17
are not included in the exclusive economic zone, in the

territorial sea or in the internal waters of a State, or in the

archipelagic waters of an archipelagic State.” UNCLOS art. 86,

1833 U.N.T.S. at 432.

Our reading of Article 101, however, is not inconsistent

with Article 86, as Article 101(a) does indeed identify

piratical acts as acts against ships on the high seas. The

subordinated acts of Article 101(c) are also acts of piracy

because they facilitate Article 101(a) acts. Moreover, Article

86 serves only as a general introduction, providing context to

the provisions that follow. It does not purport to limit the

more specific structure and texts contained in Article 101. See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,

2070 (2012) (“[I]t is a commonplace of statutory construction

that the specific governs the general” (alteration in original)

(quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374,

384 (1992))).

Additionally, Shibin’s argument is inconsistent with the

interpretation of Article 101 given by various international

authorities, including the United Nations Security Council. Cf.

Dire, 680 F.3d at 469 (looking to a United Nations Security

Council resolution to discern that UNCLOS represents “the

definition of piracy under the law of nations”). In 2011, the

Security Council adopted Resolution 1976, which reaffirmed that

18
“international law, as reflected in . . . [UNCLOS], in

particular its articles 100, 101 and 105, sets out the legal

framework applicable to combating piracy and armed robbery at

sea.” S.C. Res. 1976, preambular ¶ 8, U.N. Doc. S/RES/1976

(Apr. 11, 2011). Importantly, the Resolution stressed “the need

to investigate and prosecute those who illicitly finance, plan,

organize, or unlawfully profit from pirate attacks off the coast

of Somalia, recognizing that individuals and entities who incite

or intentionally facilitate an act of piracy are themselves

engaging in piracy as defined under international law.” Id. ¶

15 (emphasis added). Clearly, those who “finance, plan,

organize, or unlawfully profit” from piracy do not do so on the

high seas.

Similarly, Security Counsel Resolution 2020, adopted in

2011, recognizes “the need to investigate and prosecute not only

suspects captured at sea, but also anyone who incites or

intentionally facilitates piracy operations, including key

figures of criminal networks involved in piracy who illicitly

plan, organize, facilitate, or finance and profit from such

attacks.” S.C. Res. 2020, preambular ¶ 5, U.N. Doc. S/RES/2020

(Nov. 22, 2011) (emphasis added).

These sources reflect, without ambiguity, the international

viewpoint that piracy committed on the high seas is an act

against all nations and all humankind and that persons

19
committing those acts on the high seas, as well as those

supporting those acts from anywhere, may be prosecuted by any

nation under international law. See Ali, __ F.3d at __, No. 12-

3056, slip op. at 20.

Shibin makes a similar argument that he made with respect

to UNCLOS to the domestic law provisions of 18 U.S.C. §§ 1651

and 2. Thus, he argues that the “on the high seas” requirement

contained in § 1651 means that even those who are charged under

§ 2 for aiding and abetting a § 1651 piracy must act on the high

seas. As he did with Article 101, Shibin seeks to import the

high seas locational component of § 1651 into § 2. We believe

that this argument fairs no better.

To violate § 1651, a principal must carry out an act of

piracy, as defined by the law of nations, on the high seas. But

Shibin was not prosecuted as a principal; he was prosecuted as

an aider and abettor under § 2. Section 2 does not include any

locational limitation, just as Article 101(c) of UNCLOS does not

contain a locational limitation. Section 2 more broadly

punishes conduct that “aids, abets, counsels, commands, induces

or procures” commission of “an offense against the United

States,” including conduct punished in § 1651. 18 U.S.C. §

2(a). And nothing in § 1651 suggests that an aider and abettor

must satisfy its locational requirement.

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 It is common in aiding-and-abetting cases for the

facilitator to be geographically away from the scene of the

crime. For example, to be convicted of aiding and abetting a

bank robbery, one need not be inside the bank. See United

States v. Ellis, 121 F.3d 908, 924 (4th Cir. 1997) (“[O]ne's

physical location at the time of the robbery does not preclude

the propriety of an aiding and abetting charge”); United States

v. McCaskill, 676 F.2d 995, 1000 (4th Cir. 1982) (concluding

that driver of the getaway car was liable as an aider-and-

abettor); Tarkington v. United States, 194 F.2d 63, 68 (4th Cir.

1952) (“It is also obvious that there is no merit in the

contention that the conviction was invalidated because [the

defendant] was not physically present at the bank when the

robbery took place”). Similarly, “[o]ne need not be present

physically at the time to be guilty as an aider and abettor in

an embezzlement.” United States v. Ray, 688 F.2d 250, 252 (4th

Cir. 1982).

Nonetheless, Shibin relies on United States v. Ali, 885 F.

Supp. 2d 17 (D.D.C. 2012), rev’d in relevant part, __ F.3d at

__, No. 12-3056, slip op. at 32, to contend that we should read

a locational limitation into § 2 based on the Supreme Court’s

interpretation of the predecessor statute. In United States v.

Palmer, 16 U.S. (3 Wheat.) 610, 633-34 (1818), the Supreme Court

concluded that the piracy provisions of the Crimes Act of 1790

21
did not reach conduct committed by foreign vessels traversing

the high seas. To reverse that ruling, Congress revised the

offense of general piracy. But in doing so, it did not alter §

10 of the Crimes Act of 1790, which is § 2’s predecessor. From

this history, Shibin argues that § 2 is therefore a municipal

statute, applying only to piracy within United States territory.

But the tie between Palmer and § 2 is not strong enough to

validate Shibin’s argument. First, the Supreme Court’s comments

in Palmer on § 2’s predecessor are dicta. See Palmer, 16 U.S.

at 629-30. But more importantly, § 2’s predecessor was tied to

the crimes proscribed by the Crimes Act of 1790 and was narrower

than today’s § 2. Thus, Palmer did not construe the modern

aiding-and-abetting liability. We are satisfied to give § 2, in

its present form, its natural reading.

Accordingly, we affirm Shibin’s piracy convictions in

Counts 1 and 7, based on his intentionally facilitating two

piracies on the high seas, even though his facilitating conduct

took place in Somalia and its territorial waters.

III

Shibin next contends that the indictment should have been

dismissed for lack of personal jurisdiction because he was

“forcibly seized and removed from [Somalia] by agents of the

United States government and was provided no opportunity to

22
challenge either his detention or his removal.” He argues that

the lack of an extradition treaty between Somalia and the United

States

should not be construed to mean one nation’s
acquiescence to another government’s exercise of power
over its citizens. The lack of a treaty with Somalia
is not permission given by the Somalia government to
the United States to enter its country and seize its
citizens for arrest, transport, and prosecution.

* * *

Because the lack of a treaty is not permission or
silent acquiescence to foreign governmental seizure of
their citizens, the United States must respect
Somalia’s decision not to enter into an extradition
treaty with us and go through official Somali channels
to obtain custody of Mr. Shibin -- if Somalia would
allow it.

Shibin was initially detained in Bosasso, Somalia, by Host

Nation Defense Forces. A few days later, these forces turned

him over to the Bosasso Police Department, and the Bosasso

Police in turn handed him over to the FBI, which took him to

Virginia, where he was “found” for U.S. jurisdictional purposes.

Under the Ker-Frisbie doctrine, the manner in which the

defendant is captured and brought to court is generally

irrelevant to the court’s personal jurisdiction over him. See

Ker v. Illinois, 119 U.S. 436, 444 (1886) (“[S]uch forcible

abduction is no sufficient reason why the party should not

answer when brought within the jurisdiction of the court which

has the right to try him for such an offense, and presents no

23
valid objection to his trial in such court”); Frisbie v.

Collins, 342 U.S. 519, 522 (1952) (“There is nothing in the

Constitution that requires a court to permit a guilty person

rightfully convicted to escape justice because he was brought to

trial against his will”); see also Kasi v. Angelone, 300 F.3d

487, 493-95 (4th Cir. 2002).

Shibin argues that the Ker-Frisbie doctrine does not apply

to him because Somalia and the United States do not have an

extradition treaty. He suggests that the absence of a treaty

should be taken as Somalia’s wish not to have persons extradited

and therefore removed involuntarily. But Shibin cites no case

law for this theory, and we could find none. Indeed, the

existence of an extradition treaty is hardly relevant to the

applicability of the doctrine, unless the terms of the treaty

explicitly foreclose it.

To be sure, there are fleeting references in the case law

to exceptions to the Ker-Frisbie doctrine. For instance, in

United States v. Alvarez-Machain, 504 U.S. 655, 662-70 (1992),

the Court analyzed whether a treaty between countries, under

which a breach would limit the jurisdiction of a court,

prohibited the defendant’s abduction. The implication there was

that if the treaty so provided, the United States would be bound

by the treaty. But the implication was not that the absence of

a treaty would limit a court’s jurisdiction.

24
 More explicitly, in United States v. Anderson, 472 F.3d

662, 666 (9th Cir. 2006), the court stated that the Ker-Frisbie

doctrine does have exceptions that would deprive the court of

jurisdiction over an extradited defendant when “(1) the transfer

of the defendant violated the applicable extradition treaty, or

(2) the United States government engaged in misconduct of the

most shocking and outrageous kind to obtain his presence.”

(Internal quotation marks and citations omitted). Another court

observed, however, that the shock-the-conscience exception rests

on “shaky ground.” United States v. Best, 304 F.3d 308, 312-13

(3d Cir. 2002).

Nonetheless, neither of the exceptions suggested in

Anderson would help Shibin in this case. First, Shibin cites no

treaty between Somalia and the United States that could limit a

federal court’s jurisdiction over him. And second, Shibin has

failed to show that the government’s conduct in this case was,

in any degree, “of the most shocking and outrageous kind.”

Anderson, 472 F.3d at 666 (internal quotation marks omitted).

Factual realities also undermine Shibin’s arguments.

Although Shibin claims that he should have been allowed some

formal process in Somalia, he does not identify what this

process might have been. He has identified no extradition

treaty or extradition process, and he has pointed to no other

established legal process that might have been applicable.

25
 At bottom, we conclude that Shibin’s presence in the United

States, although against his will, satisfied the personal

jurisdiction requirements of “brought into” or “found in,” as

contained in 18 U.S.C. §§ 1651, 1203, and 2280. See, e.g.,

United States v. Shi, 525 F.3d 709, 725 (9th Cir. 2008)

(concluding that “the [statutory] requirement that a defendant

be ‘later found’ does not contain the implicit requirement that

the defendant’s arrival in the United States be voluntary”);

United States v. Rezaq, 134 F.3d 1121, 1130 (D.C. Cir. 1998)

(holding that “found in” does not create a statutory exception

to the Ker-Frisbie rule); United States v. Yunis, 924 F.2d 1086,

1092 (D.C. Cir. 1991) (finding that the statutory term “found

in” “does not indicate the voluntariness limitation urged by

[the defendant]”). Accordingly, we affirm the district court’s

ruling denying Shibin’s motion to dismiss the indictment for

lack of personal jurisdiction based on his being brought into

the United States involuntarily.

IV

Shibin next contends that the non-piracy counts related to

the Marida Marguerite, Counts 2 through 6, must be dismissed

because “the universal jurisdiction doctrine did not provide the

[district] court with jurisdiction” over those counts. Counts 2

through 6 charge Shibin with the following offenses:

26
 Count 2: Conspiracy to commit hostage taking, in
violation of 18 U.S.C. § 1203(a);

Count 3: Hostage taking, in violation of 18 U.S.C.
§§ 1203(a) and 2;

Count 4: Conspiracy to commit violence against
maritime navigation, in violation of 18 U.S.C.
§§ 2280(a)(1)(H);

Count 5: Violence against maritime navigation, in
violation of 18 U.S.C. §§ 2280(a)(1)(A) and 2; and

Count 6: Use of a firearm during a crime of
violence, in violation of 18 U.S.C. §§ 924(c) and 2.

Shibin argues that these crimes do not fit within the small set

of crimes that are universally cognizable and therefore subject

to prosecution under universal jurisdiction.

The government contends that universal jurisdiction was not

invoked for the prosecution of Counts 2 through 6. Rather, “the

criminal statutes [themselves] are clear in the extraterritorial

scope, and in each case Congress acted pursuant to a

constitutional grant of lawmaking power” to extend U.S.

jurisdiction over those offenses.

At the outset, we agree that Counts 2 through 6 do not

depend on universal jurisdiction. Rather, they rely on the

jurisdiction provided by the statutes themselves.

It is well-established that Congress may criminalize

extraterritorial conduct. See, e.g., United States v. Ayesh,

702 F.3d 162, 166 (4th Cir. 2012) (“‘Congress has the authority

to apply its laws, including criminal statutes, beyond the

27
territorial boundaries of the United States’” (quoting United

States v. Dawn, 129 F.3d 878, 882 (7th Cir. 1997))); EEOC v.

Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (“Both parties

concede, as they must, that Congress has the authority to

enforce its laws beyond the territorial boundaries of the United

States”), superseded by statute on other grounds, Civil Rights

Act of 1991, Pub. L. No. 102-166, § 109(a), 105 Stat. 1071,

1077.

To be sure, statutes extend extraterritorially only if

Congress clearly so provides. See Morrison v. Nat’l Australia

Bank Ltd., 130 S. Ct. 2869, 2877-78, 2883 (2010); see also

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664-65

(2013) (applying the presumption against extraterritoriality).

But when Congress provides a clear indication of

extraterritoriality, U.S. jurisdiction is not limited to

offenses criminalized under international law nor dependent on

universal jurisdiction. United States v. Yousef, 327 F.3d 56,

91 (2d Cir. 2003) (“[I]rrespective of whether customary

international law provides a basis for jurisdiction over [the

defendant] for Counts Twelve thru Nineteen, United States law

provides a separate and complete basis for jurisdiction over

each of these counts and . . . United States law is not

subordinate to customary international law or necessarily

28
subordinate to treaty-based international law and, in fact, may

conflict with both”).

In this case, the substantive statutes on which Counts 2

through 6 rest clearly manifest Congress’ intent to criminalize

conduct that takes place outside the municipal jurisdiction of

the United States. Section 1203, on which Counts 2 and 3 are

based, criminalizes hostage taking and provides:

(a) Except as provided in subsection (b) of this
section, whoever, whether inside or outside the United
States, [takes hostages], shall be punished by
imprisonment for any term of years or for life and, if
the death of any person results, shall be punished by
death or life imprisonment.

(b)(1) It is not an offense under this section if the
conduct required for the offense occurred outside the
United States unless --

(A) the offender or the person seized or detained
is a national of the United States;

(B) the offender is found in the United States;
or

(C) the governmental organization sought to be
compelled is the Government of the United States.

18 U.S.C. § 1203 (emphasis added). This statute explicitly

reaches hostage taking anywhere in the world, so long as the

offender ends up in the United States. In this case, Shibin was

involved in hostage taking on the Marida Marguerite and was

later found in Virginia, where he was prosecuted.

29
 Section 2280, on which Counts 4 and 5 are based,

criminalizes maritime violence and includes language similar to

that in the hostage taking statute. It provides:

(b) Jurisdiction. -- There is jurisdiction over the
activity prohibited in subsection (a) --

(1) in the case of a covered ship, if --

(A) such activity is committed --

(i) against or on board a ship flying
the flag of the United States at the
time the prohibited activity is
committed;

(ii) in the United States; or

(iii) by a national of the United
States or by a stateless person whose
habitual residence is in the United
States;

(B) during the commission of such activity,
a national of the United States is seized,
threatened, injured or killed; or

(C) the offender is later found in the
United States after such activity is
committed;

(2) in the case of a ship navigating or scheduled
to navigate solely within the territorial sea or
internal waters of a country other than the
United States, if the offender is later found in
the United States after such activity is
committed; and

(3) in the case of any vessel, if such activity
is committed in an attempt to compel the United
States to do or abstain from doing any act.

18 U.S.C. § 2280(b) (emphasis added). The term “covered ship,”

as used in § 2280(b), is defined as “a ship that is navigating

30
or is scheduled to navigate into, through or from waters beyond

the outer limit of the territorial sea of a single country or a

lateral limit of that country’s territorial sea with an adjacent

country.” 18 U.S.C. § 2280(e). In this case, Shibin was

involved in maritime violence against the Marida Marguerite in

waters other than United States waters and was later found in

Virginia, where he was prosecuted.

Finally, § 924(c), on which Count 6 is based, criminalizes

the use or possession of a firearm in connection with a crime of

violence. It is an ancillary crime that depends on the nature

and reach of the underlying crime. Thus, its jurisdictional

reach is coextensive with the jurisdiction of the underlying

crime. As the statue provides:

[A]ny person who, during and in relation to any crime
of violence or drug trafficking crime . . . for which
the person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime . . . [be
sentenced to an additional term of imprisonment].

18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, because Shibin

could be prosecuted in the United States for hostage taking and

maritime violence, he could also be prosecuted under § 924(c)

for possessing, using, or carrying a firearm in connection with

those crimes. See United States v. Belfast, 611 F.3d 783, 814

(11th Cir. 2010) (concluding that § 924(c) applies

31
extraterritorially because “a statute ancillary to a substantive

offense statute is presumed to have extraterritorial effect if

the underlying substantive offense statute is determined to have

extraterritorial effect” (internal alterations and quotation

marks omitted)); United States v. Hasan, 747 F. Supp. 2d 642,

684 (E.D. Va. 2010) (applying § 924(c) extraterritorially),

aff’d sub nom. United States v. Dire, 680 F.3d 446 (4th Cir.

2012). Thus, as an ancillary crime to underlying crimes that

apply extraterritorially, § 924(c) applies coextensively with

the underlying crimes.

Congress’ power to enact statutes that extend

extraterritorially is derived generally from the Define and

Punish Clause, U.S. Const. art. I, § 8, cl. 10; the Treaty

Power, U.S. Const. art. II, § 2, cl. 2; and the Necessary and

Proper Clause, U.S. Const. art. I, § 8, cl. 18.

Thus, § 1203, the hostage-taking statute, is

constitutionally valid as the implementation of the

International Convention Against the Taking of Hostages,

December 17, 1979, T.I.A.S. No. 11,081. See United States v.

Ferreira, 275 F.3d 1020, 1027-28 (11th Cir. 2001) (concluding

that “Congress passed the Hostage Taking Act to implement the

International Convention Against the Taking of Hostages” and

that it was a valid exercise of congressional authority under

32
the Necessary and Proper Clause); United States v. Lue, 134 F.3d

79, 81-84 (2d Cir. 1998) (same).

Similarly, § 2280, punishing maritime violence, is

constitutionally valid as the implementation of the Convention

for the Suppression of Unlawful Acts Against the Safety of

Maritime Navigation arts. 7, 11, March 10, 1988, 1678 U.N.T.S.

221. See United States v. Shi, 525 F.3d 709, 721 (9th Cir.

2008) (“In order to satisfy this obligation [of the Maritime

Safety Convention], it was necessary for the United States to

codify the Convention's ‘extradite or prosecute’ requirement

into federal law. Section 2280 accomplishes this task”); cf.

Yousef, 327 F.3d at 95–96 (discussing a similar provision in

the Montreal Convention).

Finally, § 924(c), criminalizing gun use in connection with

any crime of violence that can be prosecuted in the United

States, is constitutionally valid under the Necessary and Proper

Clause in connection with other statutes’ implementation of

treaties. See Lue, 134 F.3d at 84 (relying on M’Culloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819), for the rule that “the

‘plainly adapted’ standard requires that the effectuating

legislation bear a rational relationship to a permissible

constitutional end”).

At bottom, we reject Shibin’s argument that the district

court did not have jurisdiction under “universal jurisdiction”

33
over the non-piracy counts related to the Marida Marguerite,

Counts 2 through 6. Universal jurisdiction was irrelevant to

the prosecution of those counts, and, we conclude, each of those

counts is based on a statute that Congress validly applied to

extraterritorial conduct, including Shibin’s conduct.

V

Finally, Shibin contends that the district court abused its

discretion in admitting into evidence the testimony of FBI Agent

Kevin Coughlin, who was called as a witness to rebut testimony

given by defense witness Mohamud Salad Ali. Agent Coughlin had

conducted pretrial interviews of Salad Ali with the assistance

of an FBI Somali linguist, who served as an interpreter. And as

the interpreter gave Salad Ali’s answers to the questions posed

by Agent Coughlin, Coughlin made notes of what Salad Ali said.

During his testimony at trial, Salad Ali denied making some

of the statements recorded in Agent Coughlin’s notes. After

Salad Ali concluded his testimony, the government called Agent

Coughlin as a rebuttal witness, and Coughlin testified that

Salad Ali did in fact make the statements he denied making.

Shibin objected to the testimony because Agent Coughlin was

repeating out-of-court statements of an absent declarant -- the

interpreter -- and therefore Coughlin’s testimony was

inadmissible hearsay. The district court, however, overruled

34
the objection. But it pointed out that Shibin could cross

examine Agent Coughlin about the use of the interpreter and how

the interview was conducted. Shibin now contends that the

district court’s ruling was an abuse of discretion.

The government argues that Agent Coughlin’s testimony was

not inadmissible hearsay of the interpreter but rather

admissible testimony of prior inconsistent statements made by

Salad Ali. See Fed. R. Evid. 801(c)(2) (defining hearsay as

evidence offered “to prove the truth the matter asserted in the

statement”); Fed. R. Evid. 613(b) (providing the procedure for

admitting extrinsic evidence of a prior inconsistent statement).

We agree with the government that the district court did

not abuse its discretion in admitting Agent Coughlin’s testimony

about Salad Ali’s statements in the interview because they were

admitted only as prior inconsistent statements. And the absence

in court of the interpreter did not render the statements

inadmissible as hearsay because the interpreter was not the

declarant, but only a “language conduit.” United States v.

Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (“[E]xcept in unusual

circumstances, an interpreter is no more than a language conduit

and therefore his translation does not create an additional

level of hearsay” (quoting United States v. Martinez–Gaytan, 213

F.3d 890, 892 (5th Cir. 2000) (internal quotation marks

omitted)). While interpreted testimony might be unusable

35
without the interpreter’s presence in a circumstance “where the

particular facts of a case cast significant doubt upon the

accuracy of a translated confession,” id., no such facts were

presented in this case. Indeed, Agent Coughlin testified

without contradiction that Salad Ali did not have any difficulty

understanding the questions.

Shibin also raises for the first time on appeal a challenge

under Crawford, arguing that the Confrontation Clause required

the presence of the interpreter. See Crawford v. Washington,

541 U.S. 36, 59 (2004). He argues that “the absence of the

interpreter at trial prevented [him] from being able to

challenge by cross-examination, the reliability of the out-of-

court statements that the government offered against him.”

Crawford, however, “does not bar the use of testimonial

statements for purposes other than establishing the truth of the

matter asserted.” United States v. Ayala, 601 F.3d 256, 272

(4th Cir. 2010) (quoting Crawford, 541 U.S. at 60 n.9). Here,

the statements were introduced as prior inconsistent statements.

The interpreter was nothing more than a language conduit. He

translated the statements of Salad Ali and Agent Coughlin, both

of whom were subject to cross examination.

Moreover, because we review Shibin’s Crawford argument for

plain error, Shibin must show that the error affected his

substantial rights. See Fed. R. Crim. P. 52(b); United States

36
v. Olano, 507 U.S. 725, 734-35 (1993). Shibin, however, has made

no mention of any substantial rights that were adversely

affected. Indeed, Agent Coughlin’s rebuttal testimony was not

even critical to Shibin’s convictions. Shibin admitted his

involvement in the ransom negotiations of the Marida Marguerite,

and his involvement in the Quest piracy was established by

coconspirator testimony, Shibin’s admissions, and the contents

of Shibin’s cell phone. In addition, Salad Ali himself

testified that the investors of the Quest piracy could have

chosen Shibin to be the negotiator without his knowledge.

In short, we reject Shibin’s challenge to the district

court’s evidentiary ruling.

* * *

For the foregoing reasons, we affirm Shibin’s judgments of

conviction.

AFFIRMED

37