Metropolitan News-Enterprise


Friday, April 25, 2008


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Ninth Circuit Upholds Chinese Man’s Piracy Convictions


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday upheld the piracy convictions of a Chinese national who killed the captain and first mate of the ship on which he was sailing in international waters and then seized control of the vessel.

Ruling that federal courts have jurisdiction over foreign nationals who forcibly seize control of foreign vessels in international waters, the court affirmed Lei Shi’s convictions on three counts of piracy-related offenses and concluded that the government did not violate his constitutional rights when it searched his bunk area on the ship, or when it elicited a confession from him during subsequent questioning at a federal facility in Honolulu.

Shi was a cook on the Full Means No. 2, a Taiwanese fishing vessel registered in the Republic of the Seychelles. The ship was sailing in international waters off the coast of Hawaii in March of 2002 when Shi stabbed both the captain and first mate to death with two large knives from the ship’s galley.

He claimed that the two men had repeatedly beaten and harassed him in the past, and on the day of the killings had demoted him to deck hand, accompanied by another particularly severe beating.

The government alleged that Shi, after killing the men, ordered the second mate to “drive the ship,” and ordered the other crewmembers to throw the captain’s body overboard. He allegedly stated that he would kill anyone who disobeyed him and refused to let his fellow crewmates use the radio.

Shi retained control of the ship for two days, setting a course for China and threatening to scuttle the vessel if his instructions were not obeyed. However, on March 16, 2002, the crew overpowered Shi and imprisoned him in a storage compartment.

The crew then set a course for Hawaii, but never contacted the ship’s parent company, apparently because none of them knew how to operate the radio. After several days of silence, the company notified the U.S. Coast Guard that the ship was missing and requested its assistance in recovery.

Five days after Shi had originally seized the ship, a Coast Guard cutter intercepted the ship approximately 60 miles from Hilo, Hawaii.

Over the next two days, Shi, who was still imprisoned by the crew in the storage compartment, spoke to a Coast Guard officer and admitted to having killed the two men. However, the officer did not read Shi his Miranda warnings prior to speaking with him.

FBI agents then boarded the ship and, pursuant to a search warrant, searched Shi’s bunk area where they discovered several incriminating letters Shi had written to his family. They arrested Shi for violating 18 U.S.C. § 2280, which prohibits acts of violence that endanger maritime navigation, and escorted him to the ship’s dining room, where they—accompanied by a translator—explained his Miranda rights to him.

Shi signed an advice of rights form, and the agents transported him to the federal building in Honolulu, where he again confessed after a four-and-a-half-hour interrogation.

The government charged Shi with one count of seizing control over a ship by force, and two counts of performing an act of violence likely to endanger the safety of the ship. After a jury trial before U.S. District Judge Helen Gillmor of the District of Hawaii, Shi was convicted and sentenced to 36 years in prison.

Shi appealed, challenging, among other things, the district court’s jurisdiction, the admissibility of his confession to the FBI, and the admissibility of the letters seized from his bunk.

However, the Ninth Circuit, in an opinion by Judge Diarmuid F. O’Scannlain, held that the court’s exercise of jurisdiction and its admission of the evidence were proper.

O’Scannlain rejected Shi’s claims that Congress lacked jurisdiction to regulate conduct on the high seas, noting that Article I, Section 8, Clause 10 of the Constitution specifically empowers Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

He also concluded that Shi had notice that he could be prosecuted in the United States for conduct occurring on the high seas because piracy is subject to universal jurisdiction, and because Sec. 2280 implements the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation—to which the United States is a party—which expressly provides notice that prohibited conduct may be prosecuted by any state signatory.

O’Scannlain then opined that Shi’s second confession after he had received his Miranda warnings was properly admitted, despite the inadmissibility of his earlier statements to the Coast Guard officer, because the confession was sufficiently attenuated. In arriving at this conclusion, O’Scannlain noted that the confession to the FBI arose a full day later in a federal building in U.S. territory after Shi had been fed, given healthcare and new clothes, and permitted access to restroom, and that Shi’s earlier statement to the officer had not been the product of purposeful or flagrant official misconduct.

He also wrote that Shi’s waiver of his Miranda rights was the product of knowing, free and deliberate choice given his coherent and “cocky” demeanor, and the absence of any improper tactics by FBI agents.

O’Scannlain further concluded that the search of Shi’s bunk had been proper where the warrant had authorized agents to seize written documents that could identify Shi from a prescribed area—even though the warrant did not identify such items with particularity—because probable cause had existed to seize items which would identify Shi as controlling the area, and because the agents lacked additional information which would have allowed a more specific description of items to be seized

Judges A. Wallace Tashima and Milan D. Smith Jr. joined O’Scannlain in his opinion.

The case is United States v. Shi, 06-10389.


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