In re Kashamu

769 F.3d 490, 2014 U.S. App. LEXIS 17805, 2014 WL 4494837
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 15, 2014
DocketNo. 14-2093
StatusPublished
Cited by10 cases

This text of 769 F.3d 490 (In re Kashamu) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kashamu, 769 F.3d 490, 2014 U.S. App. LEXIS 17805, 2014 WL 4494837 (7th Cir. 2014).

Opinion

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 thought) and “Kasmal.” So far as appeared, Kashamu had never entered the United States, and his current whereabouts 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 another 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 proceedings, both unsuccessful, ending finally in January 2003 when the presiding judge refused to order him extradited. He had been detained throughout the extradition proceedings. 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 extradited. 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 Ala-ji, 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).

Kashamu contended in his 2009 motion that these findings should be given collateral estoppel effect in the criminal proceeding and that if this was done he couldn’t be convicted 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 [492]*492the 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 paragraph 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 codefen-dants who had pleaded guilty had admitted their participation in the charged conspiracy and identified ‘Alaji’ as the leader of the conspiracy. Two of them identified Kasha-mu 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 court has no personal jurisdiction over him because he’s never been in the United States (and so in assuming jurisdiction 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 government 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, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), Kasha-mu has no rights under the U.S. Constitution. 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 indictment has no expiration date. “An original indictment remains pending until it is dismissed or until double jeopardy 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, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); United States v. Bokhari, 757 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 trial (or in pretrial proceedings) renew his motion for dismissal on the basis of the speedy-trial clause; were the motion de[493]*493nied 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 United States and fall into the clutches of the federal judiciary, he must rely entirely on mandamus.

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Bluebook (online)
769 F.3d 490, 2014 U.S. App. LEXIS 17805, 2014 WL 4494837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kashamu-ca7-2014.