Thursday, September 18, 2014 5:29 pm
Justice Charles R. Norgle, the Judge of Chicago seventh circuit of court of appeal last Monday advised Chief Buruji Kashamu, the chieftain of Peoples Democratic Party, PDP to come over to the United States to defend himself against charges of involvement in drug dealing instead of trying to quash the charges. The Judge delivered the ruling while giving his decision in a “Petition for Writ of Mandamus” to the Northern District of Illinois, Eastern Division of the Court by the self styled South west chief mobiliser of PDP.
Kashamu, a dual citizen of Nigeria and Benin, was charged in an indictment returned by a federal grand jury in Chicago, along with 13 other persons, with conspiracy to import heroin into the United States and distribute it in 1998. The Jury had agreed that Kashamu was the leader of the drug cartel and 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”.
The United States government did not ask that Kashamu be tried in absentia, but 11 of the other defendants pleaded guilty, one proceeded to trial and was convicted, and another could not be found and remains a fugitive.
In a motion filed earlier this year in the district court in Chicago, Kashamu had sought 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.
He therefore argued that in assuming jurisdiction, the district court which convicted him 16 years ago violated the due process clause of the Fifth Amendment. The PDP chieftain also argued that the speedy-trial clause of the Sixth Amendment bars his prosecution because the United States government hasn’t make any attempt to extradite him in the past eleven years.
But the government argued that as a foreigner, living abroad and not in U.S. custody abroad, Kashamu has no rights under the U.S. Constitution. The appellate court agreed with assertion by Kashamu that it did not have custody over him at present. But the court noted that if the PDP chieftan should ever find himself in the United States 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,” the court said citing 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).
The Court noted that the possibility of Kashamu finding himself in the US to defend the charges is now very bright because in opposing the petition for mandamus the US Justice Department had told the Court that: “the prospects for extradition [from Nigeria] have recently improved and, as a result, the government is optimistic about extraditing Kashamu.”
“The implication 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. The Court however noted that “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 Nigeria 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…”
Still, the Court also held that Kashamu’s contention that the Sixth Amendment’s speedy-trial clause requires dismissal of the indictment is premature, “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.”
The court ruled that only two possible avenues are open to Kashamu to clear himself of the charges. The first one, is for the PDP chieftain 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 denied 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.
“Our government’s having to undergo the expense and uncertainty of seeking extradition of a foreign big shot exonerated (though only partly) by the judiciary of our British ally. Given Kashamu’s prominence in Nigerian business and government circles, and the English magistrate’s findings and conclusion, the probability of extradition may actually be low,” the Court further noted.
The Court also noted that Kashamu’s claims that the threat of extradition proceedings has become a source of worry to him, inhibited him from traveling outside Nigeria lest the United States seek extradition of him from another country, soiled his reputation and by doing so has impeded his business and political ambitions in Nigeria are legitimate concerns, “but do not support the relief that he seeks from us.”
According to the Court, Kahamu was indicted 16 years ago and at any time during those years, he could have shown up “in the federal district court in Chicago to obtain a determination of his guilt or innocence.” The Court also noted that when a suspected criminal flees from imminent prosecution and becomes a fugitive, the the statute of limitations on prosecuting him is suspended. Also, the court argued that “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 judiciary didn’t give him one.”
The Court noted that while it is 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 the country. Rather than show up to fight the charges, the Court noted that the PDP chieftain fought tooth and nail to prevent his being extradited from the United Kingdom to the United States. The Court therefore concluded that the PDP chieftain was not only was functionally a fugitive, deliberately forewent the opportunity for a speedy trial.
“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 convicted be given an even heavier sentence–quite possibly a life sentence; 21 U.S.C. § 960(b)(1)(A), authorizes a life sentence for a conspiracy to import at least a kilogram of heroin. If he wants to fight the charges, he has only to fly from Lagos to Chicago; there are loads of reasonably priced flights.
“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.
‘What is true is that the government 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. How then can he argue with a straight face that the failure of the United States to extradite him entitles him to dismissal of the charges? He can’t; and the petition for a writ of mandamus is therefore DENIED,” the Court ruled.