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.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before POSNER, WOOD, and TINDER, Circuit Judges.
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 that would enable the United States to secure his presence. Indeed, the matter is worse than that: the Kuwaiti government 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 jurisdiction 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 dismissed for want of prosecution. The government, not surprisingly, vigorously defends the assertion of territorial jurisdiction over Hijazi, arguing that he and his co-defendant 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 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.
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 particular 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- 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 Company A, which bid 573,300 Kuwaiti Dinars (approximately $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 anticipated $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.
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 government alleges that Mazon was back in the United States at the time he received this email.
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 Indictment was filed on August 3, 2006. Following his indictment, 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 indications 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 transaction 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 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 government and Mazon entered into a plea agreement whereby Mazon agreed to plead guilty to a single misdemeanor 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 ...