CHARLES RONALD NORGLE, District Judge.
Before the Court is Defendant Buruji Kashamu's ("Kashamu") second motion to dismiss his indictment pursuant to Federal Rules of Criminal Procedure 12(b) and 48(b) based on alleged violations of the Fifth Amendment Due Process Clause and
Kashamu is a dual citizen of Nigeria and Benin, currently living in Nigeria. He is not now, nor has he ever been a citizen of the United States. On May 21, 1998, a federal grand jury charged Kashamu and fourteen other co-defendants in a Second Superseding Indictment (the "indictment") for their alleged involvement in an international drug conspiracy to smuggle heroin into the United States. The indictment charges Kashamu by name, and by what the Government believes to be his two aliases: "Alaji" and "Kasmal." Since then, twelve co-defendants have pleaded guilty, one went to trial and was found guilty, and two — including Kashamu — remain fugitives. Nine of the co-defendants pleaded guilty within eight months of being charged in the indictment. According to these defendants, Kashamu, who they knew as "Alaji," was the person in charge of the entire organization. Some of them had visited with Kashamu in Benin, and one, Defendant Ellen Fuhrman Wolters, had an intimate relationship with Kashamu at the time of the conspiracy.
While the case proceeded against the other co-defendants, the whereabouts of Kashamu remained unknown. On December 18, 1998, however, Kashamu was found in England and was arrested on a provisional warrant at the request of the Government. Kashamu was detained in England where he participated in extradition proceedings. During this time, Kashamu argued that it was not he, but rather his brother, Adewale Kashamu ("Adewale"), who was involved in drug trafficking activity. His first committal order was quashed in October of 2000, but he was immediately re-arrested and charged in a second extradition proceeding. The second extradition proceeding was likewise unsuccessful and Kashamu was released on January 10, 2003. Kashamu then returned to Nigeria where he now lives and works in numerous business ventures, including cement and petroleum importation, commercial real estate, and hospitality. Kashamu "also became an active participant in Nigerian politics" and works as a "key facilitator of Nigeria's current President Goodluck Jonathan's initiative to reform the Nigerian government." Kashamu's Mem. of L. in Supp. of Mot. to Dismiss the Indictment 4. To date, Kashamu has not appeared before this Court for an initial appearance or arraignment on the existing 1998 indictment.
In February of 2009, Kashamu, through local counsel, filed a motion to quash the arrest warrant and to dismiss the indictment against him "on the ground that the English magistrate had found that he was not `Alaji' and the finding should be given collateral estoppel effect in the criminal proceeding and that if this was done he could not be convicted and therefore shouldn't have to stand trial." United States v. Kashamu, 656 F.3d 679, 681 (7th Cir.2011). The Court denied the motion, and in 2011, the Seventh Circuit affirmed. Id. at 688. The United States Supreme Court denied certiorari on January 9, 2012. Kashamu v. United States, ___ U.S. ___, 132 S.Ct. 1046, 181 L.Ed.2d 741 (2012).
Now, over two years later, Kashamu has filed the instant motion to dismiss, arguing that his Sixth Amendment right to a speedy trial has been violated, and that the Government is violating his Fifth Amendment right to due process because it lacks personal jurisdiction over him. The motion is fully briefed and before the Court.
"Challenging an indictment is not a means of testing the strength or weakness
"Additionally, under Rule 48, [t]he Court may dismiss an indictment ... if unnecessary delay occurs in bringing a defendant to trial." Fed.R.Crim.P. 48(b)(3). "`In general dismissal under Rule 48(b) is appropriate only where there is delay that is purposeful or oppressive.'" United States v. Ward, 211 F.3d 356, 362 (7th Cir.2000) (quoting United States v. Sears, Roebuck & Co., Inc., 877 F.2d 734, 739 (9th Cir.1989)). "Rule 48 is a codification of the inherent power of a court to dismiss a case for want of prosecution." United States v. Deleon, 710 F.2d 1218, 1223 (7th Cir.1983). "However, Rule 48(b) `clearly is limited to post-arrest situations.'" Id. (quoting United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)).
As an initial matter, the Government argues that Kashamu is not entitled to the constitutional protections which he seeks. Specifically, the Government argues that the Fifth and Sixth Amendments are inapplicable to a foreign national living abroad who is not in the United States and has never appeared before this Court on the indictment against him. See United States v. Koch, No. 03-144, 2011 WL 284485, at *3 (W.D.Pa. Jan. 25, 2011) ("Numerous courts have held that a foreign national may raise his or her Sixth Amendment right to a speedy trial and, if successful, is entitled to have the indictment dismissed. However, with one exception, the Court has been unable to find any reported cases in which the court found that the Sixth Amendment right to a speedy trial attached before the defendant was in the United States." (internal citations omitted)). Indeed, in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), the Supreme Court "rejected the extension on the Fifth and Sixth Amendments to aliens beyond the borders of the United States." United States v. Wanigasinghe, 545 F.3d 595, 597 (7th Cir.2008). In addition, in United States v. Verdugo-Urquidez, the Supreme Court found that the Fourth Amendment protection against unlawful searches and seizures was inapplicable to a defendant who was "a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico." 494 U.S. 259, 274-275, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). While Kashamu could raise these arguments if he was present in the United States, his continued presence in Nigeria certainly weakens his claim to Fifth and Sixth Amendment rights. The Seventh Circuit, however, cautions against "broad pronouncements" with respect to "the Constitution's extraterritorial application." Wanigasinghe, 545 F.3d at 597. Therefore, in an exercise of that prescribed caution, the Court addresses Kashamu's constitutional arguments in support of the dismissal of his indictment.
Kashamu appears to allege a defect in instituting the prosecution of his case pursuant to Rule 12(b)(3) insofar as he argues that his right to a speedy trial has been violated. The Sixth Amendment provides that, "[i]n all criminal prosecutions,
The Supreme Court has established a four-factor balancing test to evaluate a speedy trial claim: (1) "whether delay before trial was uncommonly long" (2) "whether the government or the criminal defendant is more to blame for that delay" (3) "whether, in due course, the defendant asserted his right to a speedy trial" and (4) "whether he suffered prejudice as the delay's result." Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). "None of these factors is `either a necessary or sufficient condition,' and the factors `must be considered together with such other circumstances as may be relevant.'" Battis, 589 F.3d at 678 (quoting Barker, 407 U.S. at 533, 92 S.Ct. 2182); see also Vermont v. Brillon, 556 U.S. 81, 93, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) ("The factors identified in Barker have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (internal quotation marks and citation omitted)).
"The first factor ... is a threshold requirement: without a delay that is presumptively prejudicial, we need not examine the other factors." United States v. Harmon, 721 F.3d 877, 882 (7th Cir.2013) (internal quotation marks and citations omitted). "Delay approaching one year is presumptively prejudicial." Id. "If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Doggett, 505 U.S. at 652, 112 S.Ct. 2686. "This latter inquiry is significant to the speedy trial analysis because ... the presumption that pretrial delay has prejudiced the accused intensifies over time." Id.
The Government argues that because Kashamu has never appeared and has not yet been brought to trial, the period of delay between his indictment and trial remains open and thus, "[t]he mere quantification of years passed since indictment, then, is not helpful, and the multitude of cases Kashamu cites for the sole purpose of setting forth various time frames serve no purpose here." Gov't Resp. to Def. Kashamu's Mot. to Dismiss the Indictment 5. The Court disagrees. For purposes of calculating delay, it is undisputed that more than fifteen years have elapsed since the grand jury returned Kashamu's indictment. "This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy trial analysis." United States v. Arceo, 535 F.3d 679, 684 (7th Cir.2008) (finding a delay of six and one-half years extraordinary and prejudicial). Thus, the delay of fifteen years (and counting) weighs in favor of Kashamu as to the first factor.
Next, the Court must determine which party, if any, is more to blame for the delay. Under this factor, different weights are assigned for different reasons. For example,
Barker, 407 U.S. at 531, 92 S.Ct. 2182. In addition, "[j]ust as a State's `deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State]' ... so too should a defendant's deliberate attempt to disrupt proceedings be weighted heavily against the defendant." Vermont, 556 U.S. at 93-94, 129 S.Ct. 1283 (quoting Barker, 407 U.S. at 531, 92 S.Ct. 2182).
Kashamu argues that the responsibility for delay lies solely with the Government because, although he has lived openly and publically in Nigeria for the last eleven years,
The Government argues that such an effort, until recently,
During the extradition proceedings, Kashamu claimed that he was a cooperator with Nigeria's National Drug Law Enforcement Agency ("NDLEA"), and that his brother, Adewale, was the drug trafficker wanted by the United States. Shortly thereafter, the Government sent inquiries regarding these allegations to the NDLEA. In response, the Government received letters and affidavits from the leadership of the NDLEA. One such letter, dated March 12, 2001, states, inter alia, that Kashamu "had, at no time, been an informant of this Agency nor has the Agency had cause to reward him for anything" and that it believed that his brother, Adewale, was dead "by the time Buruji Kashamu was wanted by this Agency in 1994." Gov't Resp. to Def. Kashamu's Mot. to Quash Warrant & to Dismiss Indictment
Based on the history of those proceedings, the Government argues that:
Gov't Resp. to Def. Kashamu's Mot. to Dismiss the Indictment at 9. In response, Kashamu argues that his alleged manipulation of Nigerian officials and forgery are not established facts, but merely the Government's view of the evidence. Ultimately, however, this dispute is irrelevant to the disposition of the case. The relevant fact is that conflicting evidence and testimony from high ranking Nigerian government officials was produced during the extradition proceedings.
Nevertheless, Kashamu argues that the Government fails to show that any attempt to extradite him from Nigeria would have been denied, as opposed to merely could have been denied. Kashamu relies on United States v. Pomeroy, where the court found that simply because Canadian officials could have denied extradition under the discretion afforded to them under the treaty, there was "nothing in the record to indicate they would have done so had a proper request been made by the Government." 822 F.2d 718, 721-722 (8th Cir.1987). Here, however, there is evidence in the record that suggests that a request to the Nigerian government would have been denied. Indeed, it was testimony and evidence produced by the Nigerian government which led to Kashamu's release in England. Furthermore, Kashamu's status as a political figure in Nigeria and his relationship with Nigeria's President Goodluck Jonathan likewise suggest that an extradition attempt would have been futile. See United States v. Woods, 851 F.Supp. 1564, 1568 (S.D.Fla.1994) (attributing no delay to the Government for failing to seek extradition where the defendant was an official of the Bahamian government). Accordingly, the Court finds that the Government was not negligent in failing to pursue extradition against Kashamu in Nigeria. Because Kashamu fails to show that the Government intentionally or negligently failed to bring him to trial, the delay is not attributable to the Government.
Rather, as the Government argues, the delay is attributable to Kashamu because he not only resisted extradition in England, but he also created the circumstances which have prevented the United States from seeking his extradition from Nigeria. It is true that "`[a] defendant's
United States v. Reumayr, 530 F.Supp.2d 1200, 1207 (D.N.M.2007). So too here. Kashamu actively resisted extradition in England, and has continued that resistance in Nigeria — not the least of which includes his previous attempt to have this indictment dismissed in 2009. Thus, because the delay is attributable to Kashamu, this factor, "[t]he flag all litigants seek to capture," is weighted against him. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986).
Kashamu also argues that the third factor weighs in his favor because he has timely asserted his right to a speedy trial by raising the issue prior to the commencement of trial. Kashamu is correct that his assertion is timely in the sense that it is not too late. However, in order to give this factor much weight, if any, in Kashamu's favor, the appropriate question is not whether he raised his objection "on time," but rather, whether he raised it quickly and promptly. See Deleon, 710 F.2d at 1222 (stating that "[t]he third factor is the nature of the defendant's assertion of his right to a speedy trial" and because the defendant did not assert his right until "after the alleged period of improper delay" it did "not weigh heavily, if at all, in his favor"). The answer to that question is no. At the latest, Kashamu became aware of this indictment on December 18, 1998, when he was arrested in England on the outstanding warrant. Notwithstanding that knowledge, Kashamu waited more than fifteen years to file the instant motion raising his right to a speedy trial. Kashamu's previous motion seeking dismissal of this indictment filed in 2009, notably, did not contain an assertion of his speedy trial right. This is not to say, however, that a speedy trial objection ten years after he knew of the indictment would have been considered timely. Rather, it further demonstrates the degree to which his current objection is untimely. Indeed, Kashamu's fifteen year delay in asserting this right weighs against him. See Doggett, 505 U.S. at 653, 112 S.Ct. 2686 (stating that, if the defendant had known about his indictment years before he was arrested, then "Barker's third factor, concerning invocation of the right to a speedy trial, would be weighed heavily against him"); see also United States v. White, 443 F.3d 582, 591 (7th Cir.2006) (affording little weight to the third factor where the defendant waited three months after the delay had occurred to raise his right to a speedy trial); Ward, 211 F.3d at 361 (finding that the third factor did not weigh strongly in the defendant's favor where the defendant was represented by counsel but waited until after much of the delay had occurred to assert his speedy trial right). Kashamu could have raised
Finally, the Court looks to whether Kashamu has been prejudiced by the delay in bringing him to trial. With respect to this factor, Kashamu argues that he need not show actual prejudice because prejudice to him is presumed due to the lengthy period of delay. "But establishing presumptive prejudice does not relieve a defendant from the burden of showing actual prejudice; rather ... it is merely a threshold showing that the defendant must make before the remaining Barker factors become relevant." Danks v. Davis, 355 F.3d 1005, 1008-1009 (7th Cir.2004) (citing Doggett, 505 U.S. at 656, 112 S.Ct. 2686). "In fact, as long as the government shows reasonable diligence in prosecuting its case, a defendant who cannot demonstrate prejudice with specificity will not show a Sixth Amendment violation, no matter how long the delay." Hills, 618 F.3d at 632 (citing United States v. Howard, 218 F.3d 556, 564 (6th Cir.2000)).
Actual prejudice is examined "`in light of the interests the Sixth Amendment seeks to protect.'" Harmon, 721 F.3d at 883 (quoting United States v. Hassebrock, 663 F.3d 906, 915 (7th Cir.2011)). "The interests are (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. (internal quotation marks and citations omitted). Kashamu argues that he has been actually prejudiced in three ways: (1) by the fading and corruption of witnesses' memories; (2) by the loss of a key witness, his brother, Adewale; and (3) by the interference with his reputation, freedom of movement, and peace of mind.
Kashamu argues that the fifteen year delay prejudices him because, in the case of a drug conspiracy such as this, detailed witness accounts of what conspiracy members did on specific occasions constitutes a large part of the evidence in the case, and those memories degrade with time. However, as the Government notes, the testimony and accounts of the various witnesses and participants of the conspiracy have been preserved through grand jury testimony, numerous plea agreements, and testimony given at the trial of co-defendant Peter Stebbins. Thus, the danger of faded memories as to the details of the conspiracy is largely removed.
Next, Kashamu argues that the witnesses' abilities to identify the man who they knew as "Alaji" or "Kasmal" will be hindered by the fact that both he and Adewale have aged twenty years since the conspiracy took place and are of a different race than the potential witnesses. The Court rejects this argument. Naturally, everyone involved in this conspiracy, and indeed this case, has aged in the last fifteen years. Furthermore, this is not a situation where witnesses only saw "Alaji" or "Kasmal" for a brief moment twenty years ago; rather, several witnesses testified that they visited with him in Africa, and one was even intimately involved with him at the time. Should he proceed to trial, Kashamu will be able to challenge the accuracy of these identifications, if any,
Kashamu further argues that any memories that the witnesses do have of the events have likely been distorted over time by the popular fictionalized account of co-defendant Piper Kerman's incarceration in the Federal Bureau of Prisons in her book and Netflix television series "Orange is the New Black." The Court disagrees. The fictional account to which Kashamu refers involves a specific woman's time spent in prison, not the details of the crime and conspiracy which led her there. In fact, if anything, this account demonstrates that the events at issue here remain fresh in the minds of those impacted and involved, and that memories of such an experience are not soon forgotten.
Kashamu also argues that he has suffered actual prejudice through delay because he has lost contact with, and has otherwise been unable to locate his brother, Adewale, since he was released from the extradition proceedings in England. Kashamu contends that, without Adewale, his defense will suffer from witnesses' inability to identify Adewale as the man they knew as "Alaji" or "Kasmal." Adewale's presence, however, was unnecessary when Kashamu successfully evaded extradition in England by pointing to Adewale as the drug trafficker. Additionally, there is no evidence or indication that Kashamu knew the status or location of his brother in 1998 when he was first charged in the indictment. Thus, there is no basis for Kashamu to argue that the delay over the past fifteen years has caused him to lose access to his brother when Adewale may very well have been unavailable to him before that time. Accordingly, the Court rejects this argument.
Finally, Kashamu argues that "[i]n the last 11 years since Mr. Kashamu was released from Brixton Prison until today, the ever-present cloud of the indictment has marred Mr. Kashamu's reputation, impaired his business and political interests, virtually barred him from international travel, and forced him and his family to live in perpetual uncertainty." Kashamu's Mem. of L. in Supp. of Mot. to Dismiss the Indictment 19. While it is true that a defendant can be prejudiced as a result of being named in a federal indictment "by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility," Barker, 407 U.S. at 533, 92 S.Ct. 2182, there is no such evidence here. The evidence, as described by Kashamu, shows no prejudice:
Kashamu's Mem. of L. in Supp. of Mot. to Dismiss the Indictment 4-5 (internal citations omitted). These are not the accomplishments of a man prejudiced by a fifteen year old indictment. Kashamu fails to show any actual prejudice resulting from the delay in bringing him to trial.
On balance, although the length of the fifteen year delay weighs in Kashamu's favor, the remaining three factors weigh in favor of the Government. Accordingly, based on the foregoing analysis, the Court concludes that Kashamu's Sixth Amendment right to a speedy trial has not been violated. Thus, Kashamu's Rule 12(b)(3) challenge to the indictment on that basis is denied.
Kashamu also argues that this indictment should be dismissed pursuant to Rule 48 due to the delay in bringing him to trial. Because the Court finds that there was no speedy trial violation and that the delay was not "purposeful or oppressive," Kashamu's motion to dismiss the indictment pursuant to Rule 48(b) is likewise denied. Ward, 211 F.3d at 361-362 ("Rule 48 is not circumscribed by the Sixth Amendment" but "it is driven by the same general considerations as the Sixth Amendment." (internal quotation marks and citations omitted)).
Lastly, Kashamu argues that his indictment is defective because the Government lacks personal jurisdiction over him and thus it should be dismissed pursuant to Rule 12(b) for violation of his due process rights under the Fifth Amendment. Pursuant to 18 U.S.C. § 3231, "[t]he district courts of the United States shall have original jurisdiction ... of all offenses against the laws of the United States." 18 U.S.C. § 3231; see also Hijazi, 589 F.3d at 408. Furthermore, "`[a] district court has personal jurisdiction over any defendant brought before it on a federal indictment charging a violation of federal law.'" United States v. Anzaldi, No. 11 CR 820, 2013 WL 393326, at *3 (N.D.Ill. Jan. 31, 2013) (quoting United States v. Phillips, 326 Fed.Appx. 400, 400 (7th Cir. 2009)).
In addressing "due process requirements in the context of criminal jurisdiction over a foreign defendant," however, the Seventh Circuit has indicated that courts should look to principles of international law in order to determine whether a defendant's "contacts with the United States [are] sufficient to support his prosecution." United States v. Hijazi, 845 F.Supp.2d 874, 883 (C.D.Ill.2011) (citing Hijazi, 589 F.3d at 411-412). Section 402 of the Restatement Third of Foreign Relations Law of the United States provides that:
Restatement (Third) of Foreign Relations § 402 (ALI 1987). However, "[e]ven when one of the bases for jurisdiction under § 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." Id. § 403(1). To determine whether exercise of personal jurisdiction would be reasonable, courts must evaluate all relevant factors including:
Id. § 403(2).
Such a detailed analysis, however, is unnecessary here, where Kashamu concedes that this Court has jurisdiction over the man known as "Alaji" or "Kasmal." See Kashamu's Mem. of L. in Supp. of Mot. to Dismiss the Indictment 23 ("[T]here is simply no nexus between Mr. Kashamu — a foreign national with no ties to the United States unless he were determined to be `Alaji.'" (emphasis added)). Kashamu's challenge to personal jurisdiction, rather, arises from his argument of mistaken identity — that he is not "Alaji" or "Kasmal." Kashamu argues that in order to establish personal jurisdiction over him, the Government must now prove that he is the man known as "Alaji" or "Kasmal" as charged in the indictment. Not so. Kashamu's identity is a factual question to be determined at trial.
For the purposes of the instant motion, the Court accepts all of the allegations in the indictment as true. Moore, 563 F.3d at 586 (citations omitted). It is well established that a motion to dismiss an indictment "is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence.'" Id. (internal quotation marks and citation omitted). The indictment alleges, inter alia, the following:
Second Superseding Indictment ¶¶ 2, 10, 13; see also Gov't Resp. to Def. Kashamu's Mot. to Quash Warrant & to Dismiss Indictment Ex. 1 (Doc. No. 550-2). The Court finds that these allegations are sufficient to exercise personal jurisdiction over Kashamu, as the man known as "Alaji" or "Kasmal." Therefore, Kashamu's motion to dismiss the indictment for an alleged violation of his Fifth Amendment right to due process is denied.
For the foregoing reasons, Kashamu's motion to dismiss his indictment is denied.
IT IS SO ORDERED.
