In the

 United States Court of Appeals
                 For the Seventh Circuit

No. 08-3060

IN RE:
    A LI H IJAZI,
                                                                Petitioner.


              On Petition for a Writ of Mandamus to the
     United States District Court for the Central District of Illinois.
               No. 05-40024—Joe Billy McDade, Judge.



   A RGUED N OVEMBER 4, 2008—D ECIDED D ECEMBER 11, 2009




  Before P OSNER, W OOD , and T INDER, Circuit Judges.
   W OOD , Circuit Judge. The complexities inherent in
transnational criminal law enforcement can be vexing:
ordinary tasks like securing the presence of the defendant,
collecting evidence, and enforcing a judgment are trans-
formed into hurdles that are difficult, or impossible, to
pass. This case illustrates the problem well. Ali Hijazi
is a Lebanese citizen and a resident of Kuwait. In
March 2005, he was indicted in the Central District of
Illinois on various fraud-related charges. Hijazi has
never appeared in Illinois, however, and there is no
extradition treaty between the United States and Kuwait
2                                               No. 08-3060

that would enable the United States to secure his presence.
Indeed, the matter is worse than that: the Kuwaiti gov-
ernment has informed the court that it does not intend
to turn Hijazi over voluntarily.
  With the assistance of U.S. counsel, Hijazi has moved to
dismiss the indictment against him. He would like to
present a number of significant legal issues to the
district court, including the following: (1) construing the
major fraud statute, 18 U.S.C. § 1031(a), and the wire
fraud statute, 18 U.S.C. § 1343, to cover his conduct, all
of which took place in Kuwait in dealings with Kuwaiti
entities, would violate international law; (2) the U.S.-
Kuwait Defense Cooperation Agreement bars the United
States district court from exercising criminal jurisdic-
tion over him; (3) the long delay (now approaching
five years) in bringing him to trial is the government’s
responsibility, and it violates his right to a speedy trial;
(4) the exercise of jurisdiction over him would violate
due process; and (5) the indictment should be dis-
missed for want of prosecution. The government, not sur-
prisingly, vigorously defends the assertion of territorial
jurisdiction over Hijazi, arguing that he and his co-defen-
dant took action in furtherance of their fraud in the
United States and against the United States, and that
the prosecution is not otherwise barred.
  Hijazi’s problem is that matters have reached an
impasse in this case. The district court refuses to rule on
his motions to dismiss the indictment until he appears
in person and is arraigned, and Hijazi takes the position
that, in the absence of an extradition treaty or any other
No. 08-3060                                             3

source of law, he is under no legal obligation to travel
to the United States and to submit himself to the
authority of the district court. The government appears
to be resigned to this impasse. We conclude that, under
the unusual circumstances of this case, the district court
had a duty to rule on Hijazi’s motions to dismiss. Hijazi
has also asked this court to rule on the merits of his
motions, and in order to assess both the petition for a
writ of mandamus and that request, we requested and
have received supplemental briefing on the merits. We
have concluded, however, that the district court, which
presided over the case against Hijazi’s co-defendant
Jeff Alex Mazon, is in a better position to address
the merits in the first instance, and so we decline that
invitation.


                            I
                            A
  We take the following account of the facts underlying
this prosecution from the Supplemental Brief for the
United States; this allows us to present the allegations
against Hijazi in enough detail to provide context for the
mandamus petition. Where it appears to be helpful, we
have supplemented this account with assertions from
Hijazi’s briefs. We naturally do not vouch for any par-
ticular allegation of either party.
  In late 2001, the U.S. Army contracted with Kellogg
Brown & Root (“KBR“), a U.S. company, to provide both
goods and services to the military at locations through-
4                                               No. 08-3060

out the world, including in Kuwait. Mazon, an American,
was the procurement manager for KBR stationed in
Kuwait. Among other things, he was responsible for
hiring subcontractors to perform work under KBR’s
contract. The Army concluded that it needed fuel
tankers and related services at the Kuwaiti airport, which
it used for military operations. Mazon accordingly
solicited bids for the tankers in early 2003; KBR anticipated
that the cost would be about $685,000. Two bidders
responded: one was Hijazi, who submitted a bid for
507,000 Kuwaiti Dinars (approximately $1,673,100) on
behalf of his company, LaNouvelle General Trading &
Contracting Co., a Kuwaiti company with no American
ownership interests; the other is referred to only as Com-
pany A, which bid 573,300 Kuwaiti Dinars (approxi-
mately $1,891,890).
  Mazon pushed the prices up more than threefold, so
that LaNouvelle’s bid became $5,521,230, and Company
A’s bid $6,243,000. So “adjusted,” Mazon then awarded
the contract to LaNouvelle. The government alleges that
he did so with the understanding that Hijazi would
“reward” him for his efforts. Mazon and Hijazi signed
the subcontract in Kuwait. Around the same time,
Mazon sent four emails relating to the subcontract to
KBR managers in the United States. Then, from March to
August 2003, LaNouvelle submitted allegedly inflated
invoices to KBR for its work, and KBR paid the anti-
cipated $5,521,230. After paying LaNouvelle, KBR turned
around and billed the United States for reimbursement;
the Army complied, using checks and wire transfers.
LaNouvelle itself had no direct dealings with the U.S.
Army or the U.S. government.
No. 08-3060                                               5

  In September 2003, Hijazi paid Mazon $1 million and
executed a promissory note to make it appear that this
represented a loan. Later, however, Hijazi sent an email
to Mazon, to an account based in the United States, in
which he wrote “this whole lown [sic] (principal & interest)
totally your money . . . .” Mazon himself, however,
was not in the United States at that time. He was living
and working in Greece during the relevant period, and
that was where he received this email from Hijazi. In
October 2003, back in the United States, Mazon opened
a bank account where he unsuccessfully tried to deposit
the $1 million. When that did not work, Hijazi emailed
Mazon again (this time at his personal account, also
allegedly based in the United States), instructing Mazon
to open three different offshore accounts where he
could deposit the money. Hijazi represents that Mazon
opened this email in Greece as well. Mazon, however,
tried again to deposit the funds in a different U.S. bank,
on October 28, 2003. It is unclear whether the second
bank was more accommodating. Two weeks later, after
he was interviewed by a KBR investigator, Hijazi sent a
third email to Mazon warning him to be careful about
what he said to his “ex-friends in Kuwait.” The govern-
ment alleges that Mazon was back in the United States
at the time he received this email.


                             B
  Based on these facts, Hijazi and Mazon were indicted
in the Central District of Illinois; the initial indictment
was returned in 2005, and the Second Superseding Indict-
6                                               No. 08-3060

ment was filed on August 3, 2006. Following his indict-
ment, Hijazi surrendered voluntarily to Kuwaiti authori-
ties, posted a $1,800 bond, and was released. As noted
earlier, there is no extradition treaty between the United
States and Kuwait. Although the Department of Justice
formally asked the Kuwaiti authorities to turn Hijazi
over to it, through a diplomatic note dated September 13,
2005, Kuwait has refused to grant that request. All indica-
tions in the record continue to support the conclusion
that the Government of Kuwait is unwilling to cooperate
in this prosecution, insofar as it concerns Hijazi. There
are three letters, dated May 3, 2007, August 22, 2007, and
March 3, 2008, from Salem Abdullah Al-Jaber Al-Sabah,
Ambassador from Kuwait to the United States, firmly
objecting to it. For example, the following passage
appears in Ambassador Al-Sabah’s March 3, 2008, letter:
    . . . [W]e strongly believe that the underlying facts do
    not support the indictment. Second, we do not
    believe the United States has any basis for asserting
    legal jurisdiction over Mr. Hijazi for acts alleged to
    have taken place in Kuwait. Numerous letters from
    our Government to [the Department of Justice] and
    meetings with Departmental officials hopefully have
    made our position on the sovereignty issue very clear.
To the extent that crimes have been committed in a trans-
action that Kuwait sees as one between two private
companies operating in Kuwait, criminal jurisdiction
(according to the Ambassador) lies in Kuwait. The letter
concludes with this statement: “I formally and respectfully
request that this case be discontinued now or, at the very
No. 08-3060                                                 7

least, that the Department of Justice consent to the
Court’s ruling on the motion even though Mr. Hijazi
remains in Kuwait.”
   In the meantime, the government has proceeded with
its prosecution of Mazon. The result of the first trial in
Mazon’s case, which was held in April 2008, was a
mistrial; the same result ensued in the re-trial, which
took place in October 2008. On March 24, 2009, the gov-
ernment and Mazon entered into a plea agreement
whereby Mazon agreed to plead guilty to a single misde-
meanor count of making a writing containing a false
statement, in violation of 18 U.S.C. § 1018. For its part, the
government agreed to dismiss all charges against Mazon
in the pending case, including all fraud charges. The
plea agreement does not require Mazon to testify
against Hijazi or otherwise to cooperate in that part of
the original case. Hijazi argues that this action forecloses
the government’s theory that he and Mazon were co-
schemers in a fraud conspiracy; the government insists
that it does no such thing and that it “stand[s] ready to
try Hijazi should he submit to the court’s jurisdiction or
be intercepted by authorities.”
   Shortly after the first indictment was returned, Hijazi
filed a motion to dismiss, arguing that the statutes
under which he was charged do not apply, and constitu-
tionally cannot apply, to the conduct of foreign nationals
outside the boundaries of the United States. The gov-
ernment filed a motion to strike, and the district court
referred the motion to a magistrate judge. The magistrate
judge recommended that Hijazi’s motion be denied,
8                                               No. 08-3060

reasoning that he was a fugitive and thus, under the
fugitive disentitlement doctrine of Molinaro v. New Jersey,

(1970), he was not entitled to have his
motion considered. The magistrate judge also expressed
a concern that there was no “mutuality” in Hijazi’s
motion: if it was granted, then Hijazi would win, but
the magistrate judge saw “nothing to indicate that an
unfavorable decision would be followed by an appear-
ance of the defendant to defend against the indictment.”
  On de novo review of the Report and Recommendation,
the district court began by noting that it had discretion to
dismiss an indictment prior to arraignment, under
Hughes v. Thompson, 

(1974). The district
court was not persuaded, however, that the fugitive
disentitlement doctrine applied directly to Hijazi. It
pointed out that “Hijazi has not yet been convicted of a
crime, Hijazi has never been physically present within
the jurisdiction of this Court, and he has submitted to
Kuwaiti authorities.” On the other hand, the court found
that the policies behind the doctrine retained some
force—in particular, “the desire for mutuality in litiga-
tion.” Like the magistrate judge, the district court thought
that “Hijazi has little to lose—if anything—from an unfa-
vorable ruling on his motion.” The court thus decided
not to render a decision on Hijazi’s motion until he is
arraigned; the court recognized that Hijazi would be
entitled to a ruling if and when he appeared.
  Hijazi filed a second motion to dismiss on December 21,
2007. The district court took no action until September 4,
2008, when it issued an order clarifying that Hijazi’s
No. 08-3060                                                 9

second motion to dismiss was also being held in
abeyance, largely for the reasons the court had already
given. In the meantime, on August 13, 2008, Hijazi filed
his petition for a writ of mandamus with this court.
We now turn to the merits of that petition.


                              II
  Despite the breadth and importance of the issues im-
plicated by Hijazi’s motions to dismiss the indictment,
the question before us is a narrow one: is he entitled to a
ruling at this time, or must he voluntarily travel to the
United States and present himself for arraignment before
the court takes his motions under advisement? Put simply,
does the district court, under the circumstances of this
case, have a duty to rule now on the authority of the
United States to apply its law to Hijazi’s conduct? In his
original petition, Hijazi also requested, almost in passing,
that this court itself order the district court to dismiss
the indictment on the merits. We ordered supplemental
briefing on that question, as we have already noted,
and we appreciate the additional insight into the case
that those briefs have afforded.
  This court is authorized to issue a writ of mandamus
pursuant to 28 U.S.C. § 1651(a), the All Writs Act. See
also F ED. R. A PP. P. 21. This writ is available in the
federal courts only in extraordinary circumstances, either
“to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Allied Chemical Corp.
v. Daiflon, Inc., 

, 35 (1980) (internal quotation
10                                               No. 08-3060

marks omitted). The Supreme Court’s most recent treat-
ment of this topic appears in Cheney v. United States Dist.
Court, 

(2004). There, noting that “the writ
is one of the most potent weapons in the judicial arsenal,”
the Court laid out the three conditions that must be
satisfied before it may issue:
     First, the party seeking issuance of the writ [must] have
     no other adequate means to attain the relief he
     desires—a condition designed to ensure that the writ
     will not be used as a substitute for the regular
     appeals process. Second, the petitioner must satisfy
     the burden of showing that [his] right to issuance of
     the writ is clear and indisputable. Third, even if the
     first two prerequisites have been met, the issuing
     court, in the exercise of its discretion, must be
     satisfied that the writ is appropriate under the cir-
     cumstances. These hurdles, however demanding, are
     not insuperable. This Court has issued the writ to
     restrain a lower court when its actions would
     threaten the separation of powers by embarrass[ing]
     the executive arm of the Government or result in the
     intrusion by the federal judiciary on a delicate area
     of federal-state relations.

(internal citations and quotation marks
omitted). We address these points in turn.
  1. Lack of adequate alternative remedy. The longer this
case has gone on, the more clear it has become that res-
olution of Hijazi’s claims—and for that matter, resolution
of the government’s right to proceed with this case—will
not be forthcoming through the usual procedures. Hijazi
No. 08-3060                                               11

is under no obligation to travel to the United States, and
as long as he does not enter the country, he cannot
forcibly be brought before the Central District of Illinois
for his arraignment. As we have already noted, there is
no extradition treaty between the United States and
Kuwait, and so the Kuwaiti government is well within
its rights to decide what it wants to do with Hijazi. See
generally U.S. Dept. of State, Treaties in Force: A List
of Treaties and Other International Agreements of the
United States in Force on January 1, 2009, at 158 (Kuwait),
available at http://www.state.gov/documents/organization/
123746.pdf (last visited Nov. 12, 2009) (referred to as
“Treaties in Force”). The letters from the Ambassador
leave no doubt about the Kuwaiti government’s posi-
tion: it objects to this prosecution, insofar as it involves
Hijazi, and it is standing on its sovereign right to decline
to cooperate with the United States.
  As long as the indictment hangs over Hijazi, he is
prejudiced even if he does not travel to the United States.
He represents in his Supplemental Brief that the United
States has directed INTERPOL, the international criminal
police organization, to issue a “red notice” regarding
Hijazi, which operates as a request to all 188 INTERPOL
members to arrest Hijazi if he enters their jurisdiction
and, if possible, to extradite him to the United States.
See INTERPOL Notices, http://www.interpol.int/public/
Notices/default.asp (last visited Nov. 12, 2009). This means,
Hijazi asserts, that he is unable to travel home to Lebanon
to see his family. (We note that there appears to be no
extradition treaty between the United States and Lebanon
either, see Treaties in Force at 160, but that does not mean
12                                               No. 08-3060

that he could travel there safely. Lebanon might choose
to cooperate with a request from the United States, even
in the absence of a treaty. Or Hijazi might stop en route in
a country such as Egypt that does have such a treaty
with the United States, see Treaties in Force at 79, and
find himself seized for extradition.)
  The government concedes that any harm suffered by
Hijazi cannot be remedied by the regular appeals process,
but, it says, any such harm is of Hijazi’s own making. It
urges that a writ of mandamus should not be available,
because Hijazi can attain the relief he desires by
showing up in court. But this reasoning overlooks the
entire point of Hijazi’s attack on the indictment. Hijazi was
lawfully in Kuwait at the time of the indictment and
remains so today. The government cites no support for
the proposition that Hijazi has no right to stay there,
and in that way, to refuse to cooperate with the U.S. pro-
ceeding. In fact, the reach of the statutes that Hijazi
allegedly violated and the district court’s authority to
command his appearance are precisely the issues Hijazi
wants the district court to resolve.
  The government does not have the option, in the
absence of Hijazi’s consent, of proceeding in absentia
with the entire proceeding. The Supreme Court held in
Crosby v. United States, 

(1993), that F ED. R.
C RIM. P. 43 “prohibits the trial in absentia of a defendant
who is not present at the beginning of the trial.” 

Nothing in Crosby, however, rules out what Hijazi
is asking for: that is, a pre-appearance adjudication of
the question whether the statutes in question apply
No. 08-3060                                                  13

extraterritorially to his situation, as well as the question
whether his actions were enough to draw him within
the personal jurisdiction of the court. In fact, the district
court’s authority to render such a ruling is well estab-
lished. It has jurisdiction over all offenses against the laws
of the United States, see 18 U.S.C. § 3231, and a defendant
charged with such an offense is entitled to—indeed,
must—file a motion alleging “a defect in instituting the
prosecution” or “a defect in the indictment” before trial,
see F ED . R. C RIM. P. 12(b)(3). Thus, even though ordinary
proceedings do not provide an adequate alternative, Hijazi
is asking for relief well within the power of the district
court.
  2. Right to issuance of the writ. The second criterion
identified in Cheney is that the right to the issuance of the
writ must be clear and indisputable. Under the unusual
circumstances of this case, we conclude that this require-
ment has been met. First, Hijazi is attempting to raise
fundamental questions about the legislative reach of the
Major Fraud Act and the Wire Fraud Act. Whether we
think of this as an issue relating to legislative jurisdic-
tion, see, e.g., Jones v. United States, 

(2000)
(evaluating interstate commerce issue under arson
statute, 18 U.S.C. § 844(i), as question of statutory cover-
age); Hartford Fire Ins. v. California, 

, 800 (1993)
(Scalia, J., dissenting), or as something going to the
court’s very power to act, there is no doubt that the
question of how far a statute reaches out to address
conduct undertaken outside the United States, in whole
or in part, is a fundamental one. See also Brief for the
United States as Amicus Curiae, Morrison v. Nat’l Australia
14                                                No. 08-3060

Bank Ltd., No. 08-1191 (U.S. Oct. 27, 2009) (addressing
the extraterritorial reach of section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. § 78j, and
arguing that the links to the United States in that case
were too attenuated to support a private suit, as a
matter of statutory coverage).
  The Supreme Court’s decision in F. Hoffman-La Roche
Ltd. v. Empagran, 

(2004), emphasizes the
importance and delicacy of the general issue that we
face here:
     . . . [T]his Court ordinarily construes ambiguous
     statutes to avoid unreasonable interference with the
     sovereign authority of other nations. See, e.g.,
     McCulloch v. Sociedad Nacional de Marineros de
     Honduras, 

, 20-22 (1963) (application of
     National Labor Relations Act to foreign-flag vessels);
     Romero v. International Terminal Operating Co., 

, 382-383 (1959) (application of Jones Act in
     maritime case); Lauritzen v. Larsen, 

,
     578 (1953) (same). This rule of construction reflects
     principles of customary international law—law that
     (we must assume) Congress ordinarily seeks to fol-
     low. See Restatement (Third) of Foreign Relations Law
     of the United States §§ 403(1), 403(2) (1986) (hereinafter
     Restatement) (limiting the unreasonable exercise of
     prescriptive jurisdiction with respect to a person or
     activity having connections with another State); Murray
     v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804)
     (“[A]n act of congress ought never to be construed to
     violate the law of nations if any other possible con-
No. 08-3060                                                 15

    struction remains”); Hartford Fire Ins. Co. v. California,
    

, 817 (1993) (SCALIA, J., dissenting) (identi-
    fying rule of construction as derived from the principle
    of “ ‘prescriptive comity’ ”).
    This rule of statutory construction cautions courts to
    assume that legislators take account of the legitimate
    sovereign interests of other nations when they write
    American laws. It thereby helps the potentially con-
    flicting laws of different nations work together in
    harmony—a harmony particularly needed in today’s
    highly interdependent commercial world.

Many other decisions from the Supreme Court
also reflect the presumption (rebuttable to be sure) against
extraterritorial effect. See, e.g., Small v. United States, 

(2005); Sale v. Haitian Ctrs. Council, Inc., 

(1993); EEOC v. Arabian American Oil Co., 

(1991); Benz v. Compania Naviera Hidalgo, S.A., 

(1957).
  While we have no problem with the proposition that
the district court was entitled to a reasonable time
within which to rule on Hijazi’s motion, the fact is that
the court has now twice announced in orders that it is
deliberately not ruling, and in neither instance did the
court hint that it had not had enough time to consider the
motion. Its reasons, to which we turn later, relate instead
to Hijazi’s decision not to come to Illinois and its concept
of mutuality. What is important is that a ruling on this
motion is necessary before the prosecution can proceed,
and that there is no prospect of such a ruling ever taking
place under the approach the district court has taken.
16                                               No. 08-3060

   The government relies on Hughes for the proposition
that Hijazi does not have a right to a pre-arraignment
ruling on his 

(“Whether the
motion should be disposed of prior to the arraignment
rests in the sound discretion of the District Court.”) Hughes,
it is worth recalling, was a brief order issued by Justice
Douglas sitting in chambers; it is not an opinion of the
Court. Moreover, as Hijazi points out, the case reached
Justice Douglas at a moment when arraignment was
imminent: the matter was scheduled for a hearing “only
a little more than an hour from the time in which [he
was writing] this short opinion.” 

The gov-
ernment suggests that this fact is of no importance,
because Justice Douglas did not otherwise rely on it. The
latter point is correct, but it is equally true that Justice
Douglas did not have before him a case that had dragged
on for years without a ruling and that presented no
prospect of ever being resolved. Permitting a district court
to wait a few hours is fundamentally different from
denying someone—here, Hijazi—his right ever to have
his motions adjudicated. See FED. R. C RIM. P. 12(d). Hijazi’s
case does not present a simple question of the scope of an
accused person’s right to a pre-arraignment decision; it
involves instead the right of a foreign defendant who
did not flee the United States to have a threshold question
relating to his duty to appear at all resolved within a
reasonable time. A non-fugitive foreign defendant is
simply in a different position from that of a domestic
defendant seeking more ordinary relief before arraign-
ment. Hijazi’s own case is even more deserving of relief
since he surrendered himself to the authorities in the
No. 08-3060                                               17

country in which he resides and in which his relevant
conduct physically occurred.
  In its supplemental brief, the government has relied
heavily on the Supreme Court’s decision in United States
v. Bowman, 

(1922), to support its inter-
pretation of the extraterritorial reach of the Major Fraud
Act. But, as we read it, Bowman undermines the govern-
ment’s argument that Hijazi has no right to a ruling. Chief
Justice Taft observed at the beginning of his opinion
that the case had reached the Supreme Court upon a
writ of error “to review the ruling of the District Court
sustaining a demurrer of one of the defendants to an
indictment for a conspiracy to defraud a corporation . . . .”

The case itself raised the question whether a
plan hatched on the high seas during a voyage to Rio de
Janeiro to defraud the government by ordering 1,000 tons
of fuel oil, but delivering only 600, fell within the juris-
diction of the United States. Three of the alleged co-
conspirators were U.S. citizens, and the fourth was a
British subject. The district court sustained the demurrer
to the indictment, on the theory that the statute did not
reach crimes committed outside the territorial jurisdic-
tion of the United States and on the high seas. The Court
treated the issue before it as one of statutory construction
and concluded that Congress did intend to reach the
conduct in question. In closing, the Court also made the
following observation:
    The three defendants who were found in New York
    were citizens of the United States, and were certainly
    subject to such laws as it might pass to protect itself
18                                               No. 08-3060

     and its property. Clearly it is no offense to the dignity
     or right of sovereignty of Brazil to hold them for
     this crime against the government to which they
     owe allegiance. The other defendant is a subject of
     Great Britain. He has never been apprehended, and
     it will be time enough to consider what, if any, juris-
     diction the District Court below has to punish him
     when he is brought to trial.

Given the fact that the entire case involved
a review of the district court’s decision on the demurrer,
this statement is more logically understood as one
relating to personal jurisdiction over the British defendant,
rather than the legislative jurisdiction issue that the
Court had just finished resolving through its interpreta-
tion of the statute. Bowman does not support the govern-
ment’s argument that a defendant in Hijazi’s position
has no entitlement to a ruling on the modern equivalent
of a demurrer.
  Although we express no view about the arguments
Hijazi has presented based on the Sixth Amendment’s
guarantee of a speedy trial, we are of the view that the
principles underlying that guarantee point strongly in the
direction of Hijazi’s right to the ruling he has requested
on his motions to dismiss. Both the accused and society
as a whole have an interest in prompt resolution of crimi-
nal proceedings. See Barker v. Wingo, 

, 519-20
(1972). Indeed, in Barker the Court expressed concern
that delay could work to the accused’s advantage, as
witnesses become unavailable and memories fade. Where
the defendant bears some responsibility for a delayed trial
No. 08-3060                                                 19

date, as in Vermont v. Brillon, 

(2009), the
Court has been willing to tolerate longer periods of
time—in Brillon, three years, where the defendant ran
through six lawyers, at least one of whom he had fired
and another who withdrew after the defendant
threatened his life. Even though the Court has carefully
avoided specifying any particular time that is automati-
cally unreasonable, it has found a Sixth Amendment
violation in extreme cases. See, e.g., Doggett v. United
States, 

(1992) (eight years, where defendant
for most of the time was living openly in the United
States). See also Klopfer v. United States, 

(1967)
(holding that an indictment left pending indefinitely
constitutes a Sixth Amendment violation).
  Just as a long delay can in some circumstances
implicate the constitutional right to a speedy trial, a long
delay in ruling on a threshold motion like this one will
cross the line at some point. If Hijazi had a legal duty to
take an action, and he was behaving in an obstructive
way, this case would be different. But nothing that Hijazi
has done has in any way prevented the district court
from ruling on his motions to dismiss. He filed the
motions in a timely fashion; he is represented by first-
rate counsel; and he has followed up appropriately rather
than allowing matters to languish. More than enough
time has passed: Hijazi is entitled to a ruling on his mo-
tions now.
  3. Appropriateness of mandamus. The question remains,
as Cheney confirms, whether this case is an appropriate
candidate for mandamus. We conclude that it is. Hijazi’s
20                                              No. 08-3060

arguments raise serious questions about the reach of U.S.
law, and it remains to be seen whether the U.S. contacts
on which the government relies are sufficient to support
its prosecution. Added to those concerns, on which
we elaborate in a moment, is the fact that there is reason
to believe that this case raises delicate foreign relations
issues. This kind of problem is analogous to the separation-
of-powers concern that motivated the Court to support
mandamus in Cheney. 

(finding that
separation-of-powers issues appropriately inform the
evaluation of a mandamus petition). As we noted earlier,
the Government of Kuwait has formally protested on
three occasions the fact that Hijazi is under indictment.
  The alleged fraudulent deal that Hijazi and Mazon
concocted involved KBR, a U.S. company doing business
in Kuwait, and LaNouvelle, a Kuwaiti company.
Although it is a fact that KBR was operating under a
contract with the U.S. government, it is not clear whether
Hijazi knew or cared where KBR’s money was coming
from. He obviously knew that LaNouvelle was sub-
mitting a bid for fuel tankers. It might matter whether
Hijazi knew that the tankers were for the use of the
U.S. military, but the sketchy record we have thus far
does not permit one to draw any conclusions about his
knowledge. The government also alleges that Hijazi
personally had some direct contacts with the United
States. But, upon closer inspection, it turns out that it is
referring to the emails that Hijazi (located in Kuwait) sent
to Mazon (located in Greece) using email addresses that
the government characterizes as “based in the United
States” (e.g., Jeff.Mazon@Halliburton.com). At least one
No. 08-3060                                               21

email might have been sent to Mazon after he returned
to the United States. Finally, the government argues that
Mazon’s activities in the United States can and should
be attributed to Hijazi. As we pointed out earlier,
Mazon attempted to deposit the $1 million that Hijazi
had given him in a couple of U.S. financial institutions.
This raises its own set of complex issues. Hijazi reminds
us in this connection that the government has dropped all
fraud charges against Mazon and has accepted a guilty
plea for a single misdemeanor count of making a false
statement. (It is doubtful that this will have any direct
significance for his case; we note that the government
would have been entitled to proceed against Hijazi even
if Mazon had been acquitted. See Standefer v. United
States, 

(1980).)
  Critical to the decision whether these contacts are
adequate to support the U.S. proceeding is the question
“how much is enough?” The Restatement (Third) of
Foreign Relations Law, to which the Supreme Court
referred with approval in Hoffman-La Roche, 

, takes the position that “[s]ubject to § 403, a
state has jurisdiction to prescribe law with respect to . . .
conduct outside its territory that has or is intended to
have substantial effect within its territory.” Restatement
(Third) of Foreign Relations § 402 (ALI 1987). Section 403
qualifies all of § 402 by stipulating that a state may not
exercise prescriptive jurisdiction “when the exercise of
such jurisdiction is unreasonable,” and it then goes on to
specify eight circumstances that might indicate unrea-
sonableness. 

The first of those looks at how
strong the link is between the activity and the territory
22                                               No. 08-3060

of the regulating state and calls for consideration of “the
extent to which the activity takes place within the
territory, or has substantial, direct, and foreseeable
effect upon or in the territory.” 

In United
States v. Nippon Paper Indus. Co., 

(1st Cir. 1997),
the First Circuit applied these principles to a criminal
prosecution.
  We raise this only to underscore the fact that the
outcome of Hijazi’s motion is by no means a foregone
conclusion, either in favor of the government or in his
favor. What is essential is a ruling on that motion. While
we considered the question whether this court should rule
directly on the merits of the motion, we have concluded
that this is not the best way to proceed. As the authorities
we have mentioned make clear, there could be facts that
the district court needs to explore; the district court is
familiar with the developments in Mazon’s prosecution;
and we are not persuaded that this is an appropriate
case in which to cut off the usual method of proceeding.


                              III
  Before concluding, we must say a word about two
points that were addressed in the opinions of the magis-
trate judge and the district court: the fugitive
disentitlement doctrine, and mutuality. The Supreme
Court summarized the fugitive disentitlement doctrine
in 

, as follows:
     No persuasive reason exists why this Court should
     proceed to adjudicate the merits of a criminal case after
No. 08-3060                                               23

    the convicted defendant who has sought review
    escapes from the restraints placed upon him pursuant
    to the conviction. While such an escape does not
    strip the case of its character as an adjudicable case
    or controversy, we believe it disentitles the
    defendant to call upon the resources of the Court for
    determination of his 

. Although the magistrate judge believed
that Hijazi was not entitled to a ruling on his
motion because of this doctrine, the district court correctly
recognized that it does not apply to Hijazi’s situation.
With the exception of one brief visit to the United States
in 1993, which all agree was unrelated to this case, Hijazi
has never been in the country, he has never set foot in
Illinois, and he owns no property in the United States. He
therefore did not flee from the jurisdiction or from any
restraints placed upon him. In fact, when he learned of
the indictment, he surrendered himself to the Kuwaiti
authorities. Had those authorities been inclined to
detain him and then to turn him over to the U.S. pros-
ecutors, they could have done so. Or they could have
prosecuted him under Kuwaiti law. This was therefore
not a reason to refrain from adjudicating his motion.
  The district court, however, did not set the doctrine
aside altogether. Instead, it suggested that one of the
principal justifications for fugitive disentitlement was “the
desire for mutuality in litigation.” The idea behind the
court’s statement is that litigation is a two-way street.
So, in Hijazi’s case, the court reasoned, if he wants the
United States to be bound by a decision dismissing the
24                                             No. 08-3060

indictment, he should be similarly willing to bear the
consequences of a decision upholding it. The district court
thought that Hijazi had little or nothing to lose from an
unfavorable ruling on his motion, and this was its
primary reason for refusing to act.
  We think that the district court took too narrow a view
of the adverse consequences that Hijazi would suffer if
he loses on his motion to dismiss. Such a decision
would, as he points out, make it very risky for him ever
to leave Kuwait, which is not his native country. INTER-
POL has a long arm, and any travel outside Kuwait’s
approximately 6,880 square miles (which makes it just a
shade bigger than Connecticut, and smaller than Ver-
mont) would risk apprehension and extradition. Naturally
he could never travel to the United States, because the
Department of Justice could place a border watch for
him (if it has not already done so). A successor govern-
ment in Kuwait could change its mind about cooperating
with the United States. Moreover, the Government of
Kuwait, Lebanon, or any other country that does not
have an extradition treaty with the United States has
discretion to extradite Hijazi if it so chooses. A federal
court decision upholding the indictment against Hijazi
may make those governments more likely to exercise
that discretion and less confident in resisting diplomatic
pressure from the United States if they are no longer
able to protest that the indictment is legally flawed as a
matter of U.S. law.
 An analogy to admiralty proceedings illustrates further
why the strong version of mutuality that the district court
No. 08-3060                                                   25

demanded is not necessary. The admiralty rules permit
actions in rem. In such cases, if a person chooses to make
a general appearance, then the district court will acquire
full in personam jurisdiction over her. But Admiralty Rule
E(8) permits someone facing an in rem admiralty or mari-
time claim to file an appearance that is “expressly re-
stricted to the defense of such claim, and in that event [the
appearance] is not an appearance for the purposes of any
other claim with respect to which such process is not
available or has not been served.” More broadly, it was
once the case that civil defendants could file a special
appearance in which they challenged the court’s personal
jurisdiction over them, and if that challenge succeeded,
they could walk away from the lawsuit. That device is no
longer used in general civil proceedings in federal court,
because F ED. R. C IV. P. 12(b)(2) permits a challenge to
personal jurisdiction to be joined with other defenses
without waiving the objection to jurisdiction. See Republic
Intern. Corp. v. Amco Engineers, Inc., 

, 165 (9th
Cir. 1975); Grammenos v. Lemos, 

, 1070 (2d Cir.
1972). Some states, however, retain it, see, e.g., T EX. R. C IV.
P. 120a, and, as we have noted, a limited version of it
lives on in the federal admiralty rules. The principal point
here is to note that any special appearance is no different,
from a mutuality point of view, from the motions that
Hijazi is attempting to have resolved. Indeed, given the
adverse consequences we have already identified that
Hijazi will experience, he stands to lose more than a
civil defendant making an old-fashioned special appear-
ance.
  In short, if Hijazi loses his challenge to the indictment,
he faces a significant enough threat of prosecution in the
26                                                 No. 08-3060

United States to satisfy any mutuality concerns that may
exist. Outside of the core fugitive disentitlement context,
the Supreme Court has indicated that disentitlement
is “too blunt an instrument” to redress the indignity of a
defendant’s absence. Degen v. United States, 

,
828 (1996). If that is so, then it is similarly true that compa-
rable disentitlement may not be based on a perceived
lack of mutuality.
  For these reasons, we therefore G RANT Hijazi’s petition
for a writ of mandamus, and hereby order the district
court promptly to rule on his motions to dismiss the
indictment.
                                                 S O O RDERED.




                            12-11-09