Buruji Kashamu v. Charles Norgle ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2093
IN RE: BURUJI KASHAMU,
Petitioner.
____________________
Petition for Writ of Mandamus
to the Northern District of Illinois, Eastern Division.
No. 94 CR 172-15 — Charles R. Norgle, Judge.
____________________
SUBMITTED AUGUST 18, 2014 — DECIDED SEPTEMBER 15, 2014
____________________
Before POSNER, KANNE, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The petition for mandamus that is
before us is the sequel to an appeal we decided three years
ago in a litigation that began sixteen years ago. For it was in
May 1998 that Buruji Kashamu, a dual citizen of Nigeria and
Benin, was charged in an indictment returned by a federal
grand jury in Chicago, along with thirteen other persons,
with conspiracy to import heroin into the United States and
distribute it, in violation of 21 U.S.C. § 963.
The government believed that Kashamu was the leader
of the conspirators. He was indicted both in his own name
and under what the government believed to be two aliases
that he used: “Alaji” (the principal alias, the government
2 No. 14-2093
thought) and “Kasmal.” So far as appeared, Kashamu had
never entered the United States, and his current wherea-
bouts were unknown. The government did not ask that he
be tried in absentia. Eleven of the other defendants pleaded
guilty, one proceeded to trial and was convicted, and anoth-
er could not be found and remains a fugitive.
Several months after the indictment came down,
Kashamu showed up in England and was arrested at our
government’s request. Justice Department lawyers, working
with their English counterparts, sought his extradition to the
United States to stand trial. There were two extradition pro-
ceedings, both unsuccessful, ending finally in January 2003
when the presiding judge refused to order him extradited.
He had been detained throughout the extradition proceed-
ings. As soon as the judge ruled, Kashamu left England for
Nigeria, where he remains.
Six years later he filed a motion in the district court in
Chicago to dismiss the indictment on the basis of findings
that the English judge had made in refusing to order him ex-
tradited. The key findings were that Kashamu had a brother
named Alaji who bore a “striking” resemblance to him, that
the brother had been a member of the drug conspiracy being
prosecuted in Chicago, and that Kashamu had informed on
his brother and other co-conspirators. As we noted in our
opinion ruling on the appeal from the district court’s denial
of the motion, “our government had not presented enough
evidence to convince the English magistrate that Kashamu
was Alaji, but Kashamu had not presented enough evidence
to convince the magistrate that he was not Alaji.” United
States v. Kashamu, 656 F.3d 679, 687 (7th Cir. 2011).
No. 14-2093 3
Kashamu contended in his 2009 motion that these find-
ings should be given collateral estoppel effect in the criminal
proceeding and that if this was done he couldn’t be convict-
ed and therefore shouldn’t have to stand trial. We disagreed.
The English judge had not found that Kashamu had not
used the name “Alaji” as an alias. All he found was that the
government had presented insufficient evidence to satisfy
him that Kashamu was Alaji. One couldn’t predict from that
finding (or the corollary findings listed in the preceding par-
agraph of this opinion) that Kashamu would or should be
acquitted if tried in federal district court on the charges in
the indictment. There was a good deal of evidence against
him. We noted in our previous opinion that among other
bits of evidence “Kashamu’s codefendants who had pleaded
guilty had admitted their participation in the charged con-
spiracy and identified ‘Alaji’ as the leader of the conspiracy.
Two of them identified Kashamu as Alaji in a photographic
lineup, and in the extradition proceeding the government
submitted their affidavits to that effect. The government also
pointed out that when arrested upon arrival in England
Kashamu had been carrying approximately $230,000.” Id. at
686; see also id. at 687–88.
Kashamu remains in Nigeria, living openly, a prominent
businessman and a politician belonging to the ruling party.
Although the United States has an extradition treaty with
Nigeria, our government has made no effort to extradite
him.
All that we’ve said so far is by way of background. The
petition for mandamus grows out of a motion Kashamu filed
earlier this year in the district court in Chicago to dismiss the
indictment against him on the alternative grounds that the
4 No. 14-2093
court has no personal jurisdiction over him because he’s
never been in the United States (and so in assuming jurisdic-
tion the district court violated the due process clause of the
Fifth Amendment) and that the speedy-trial clause of the
Sixth Amendment bars his prosecution because the govern-
ment hasn’t sought to extradite him for eleven years. Besides
contesting both grounds, the government argues that as a
foreigner, living abroad and not in U.S. custody abroad,
which distinguishes this case from Boumediene v. Bush, 553
U.S. 723 (2008), Kashamu has no rights under the U.S. Con-
stitution. That seems right; it would be very odd to think
that someone with so attenuated a connection to the United
States would have rights under the U.S. Constitution. But no
matter; even if the government is incorrect and Kashamu
does have constitutional rights, he still loses, because they
haven’t been violated.
He is correct that the district court has no jurisdiction
over him at present. But should he ever come to the United
States, whether voluntarily or involuntarily, he could be put
on trial in the federal district court in Chicago, since the in-
dictment has no expiration date. “An original indictment
remains pending until it is dismissed or until double jeop-
ardy or due process would forbid prosecution under it.”
United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990); see
also United States v. Smith, 197 F.3d 225, 228–29 (6th Cir.
1999).
And Kashamu’s contention that the Sixth Amendment’s
speedy-trial clause requires dismissal of the indictment is
premature. The denial of a motion to dismiss on speedy-trial
grounds is a nonappealable interlocutory order, United States
v. MacDonald, 435 U.S. 850 (1978); United States v. Bokhari, 757
No. 14-2093 5
F.3d 664, 668–69 (7th Cir. 2014), because until the district
court proceedings are complete the causes and duration of
the delay, the defendant’s responsibility for it, and the harm
to the defendant from the delay, cannot be determined.
Only two possible avenues of relief remain open to him.
One is to return to the United States to stand trial, and at tri-
al (or in pretrial proceedings) renew his motion for dismissal
on the basis of the speedy-trial clause; were the motion de-
nied and he convicted, he could challenge the dismissal on
appeal. His other possible recourse is to obtain from us, as
he is trying to do, a writ of mandamus ordering the district
court to dismiss the indictment. As he won’t risk the first
path to relief, which would require him to come to the Unit-
ed States and fall into the clutches of the federal judiciary, he
must rely entirely on mandamus.
In opposing the petition for mandamus the Justice De-
partment tells us that “the prospects for extradition [from
Nigeria] have recently improved and, as a result, the gov-
ernment is optimistic about extraditing Kashamu.” The im-
plication is that Kashamu’s motion to dismiss the indictment
against him is premature, as he may soon find himself in the
district court in Chicago, able to present a fuller case that his
right to a speedy trial is being violated. But the government
may be whistling in the dark in saying that it’s optimistic
about being able to extradite him from Nigeria (no doubt it
was optimistic about being able to extradite him from the
United Kingdom). The proof of the pudding is in the eating:
the government has not tried to extradite Kashamu from Ni-
geria and for all we know may be feigning “optimism” in
order to undermine Kashamu’s claim that the threat of ex-
tradition is a Sword of Damocles disrupting his life without
6 No. 14-2093
our government’s having to undergo the expense and uncer-
tainty of seeking extradition of a foreign big shot exonerated
(though only partly) by the judiciary of our British ally. Giv-
en Kashamu’s prominence in Nigerian business and gov-
ernment circles, and the English magistrate’s findings and
conclusion, the probability of extradition may actually be
low.
In addition to the threat of extradition proceedings that
he claims continues to worry him, he argues that he is inhib-
ited from traveling outside Nigeria lest the United States
seek extradition of him from another country, as it did albeit
unsuccessfully when it found him in the United Kingdom.
He also claims that the outstanding indictment has be-
smirched his reputation and by doing so has impeded his
business and political ambitions in Nigeria. These are rea-
sonable concerns, but do not support the relief that he seeks
from us. He was indicted 16 years ago. At any time during
this long interval he had only to show up in the federal dis-
trict court in Chicago to obtain a determination of his guilt or
innocence. When a suspected criminal flees from imminent
prosecution, becoming a fugitive before he is indicted, the
statute of limitations on prosecuting him is suspended. 18
U.S.C. § 3290 (“No statute of limitations shall extend to any
person fleeing from justice.”); United States v. Gibson, 490
F.3d 604, 608 (7th Cir. 2007). Similarly, when a defendant
flees the country to escape justice, the inference is that he
didn’t want a speedy trial—he wanted no trial. And if he
doesn’t want a speedy trial, he can’t complain that the judi-
ciary didn’t give him one. Barker v. Wingo, 407 U.S. 514, 534–
36 (1972); United States v. Mitchell, 957 F.2d 465, 469 (7th Cir.
1992). The defendant is as much a fugitive in the second case
as in the first.
No. 14-2093 7
It’s true that Kashamu didn’t literally flee the United
States, since he was never in the United States. But he knew
he was under indictment in this country, yet rather than
come here to fight the validity of the government’s charges,
he fought tooth and nail (and successfully) to prevent his be-
ing extradited from the United Kingdom to the United
States. He not only was functionally a fugitive, see United
States v. Bokhari, supra, 757 F.3d at 664, 672; United States v.
Marshall, 856 F.2d 896, 898 (7th Cir. 1988), he deliberately
forewent the opportunity for a speedy trial.
Some cases have suggested that the government has a
duty to seek extradition of a fugitive, if feasible, if it wants to
insulate its prosecution of the fugitive (should he ever show
up) from a speedy-trial defense. United States v. Walton, 814
F.2d 376, 379–80 (7th Cir. 1987); United States v. Tchibassa, 452
F.3d 918, 924–25 (D.C. Cir. 2006); United States v. Blanco, 861
F.2d 773, 778 (2d Cir. 1988). What is true is that the govern-
ment has to make sure that the fugitive is aware that he’s
been indicted or otherwise charged in the United States. But
really that’s all that should be true. Once he’s warned, it’s his
choice whether to face the judicial music in the United States
or forgo any speedy-trial right based on the time he spends
out of the reach of our court system.
So we’re not at all sure that the government ever must try
to extradite a fugitive so as to protect his right to a speedy
trial. It does no favor to the fugitive, who of course wants to
remain beyond the reach of our court system—otherwise
he’d leave his place of refuge voluntarily and travel to the
United States. But this is not the case in which to wrestle the
issue to the ground, since of course the government did try—
made in fact strenuous, protracted, albeit eventually futile
8 No. 14-2093
efforts—to get Kashamu back to the United States from the
United Kingdom.
It’s not as if he wants to be extradited to stand trial in the
United States on the very serious criminal charges against
him but hasn’t just so he won’t have to pay for his plane
ticket to Chicago. One of his codefendants was sentenced to
10 years in prison. If Kashamu was indeed the ringleader of
the drug conspiracy, as he may have been, he might if con-
victed be given an even heavier sentence--quite possibly a
life sentence; 21 U.S.C. § 960(b)(1)(A), authorizes a life sen-
tence for a conspiracy to import at least a kilogram of heroin.
If he wants to fight the charges, he has only to fly from La-
gos to Chicago; there are loads of reasonably priced flights.
See Priceline.com, “Cheap Flights from Lagos, Nigeria, to
Chicago, IL,” www.priceline.com/insideTrack/flights/Lagos-
LOS-Chicago-CHI.html (visited Sept. 9, 2014).
How then can he argue with a straight face that the fail-
ure of the United States to extradite him entitles him to dis-
missal of the charges? He can’t; and the petition for a writ of
mandamus is therefore
DENIED.