United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
For Buruji Kashamu, Defendant: Charles B. Sklarsky, LEAD ATTORNEY, Kara Lindsey Kapp, Robert R. Stauffer, Jenner & Block LLP, Chicago, IL; Pravin B. Rao, LEAD ATTORNEY, Jonathan R Buck, Perkins Coie LLP, Chicago, IL; Scott Jay Frankel, LEAD ATTORNEY, Frankel & Cohen, Chicago, IL.
For United States of America, Plaintiff: Diane MacArthur, LEAD ATTORNEY, United States Attorney's Office (NDIL), Chicago, IL.
OPINION AND ORDER
Hon. CHARLES RONALD NORGLE, United States 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
the Sixth Amendment right to a speedy trial. For the following reasons, the motion is denied.
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, 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.
A. Standard of Decision
" Challenging 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." United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (quoting United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006)). Rather, it is a means to allege a defect in the indictment or in instituting prosecution. Fed. R. Crim. P. 12(b)(3). A Rule 12(b)(3) " motion alleging a defect in instituting the prosecution" or " a motion alleging a defect in the indictment" must be raised before trial. Id.; see also In re Hijazi, 589 F.3d 401, 408 (7th Cir. 2009).
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)).
B. Constitutional Protections
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.
C. Speedy Trial
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 accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI. " The constitutional right to a speedy trial is triggered when an indictment is returned against a defendant." United States v. Hills, 618 F.3d 619, 629 (7th Cir. 2010). " If a defendant's right to a speedy trial has been violated, the indictment must be dismissed." United States v. Battis, 589 F.3d 673, 678 (3d Cir. 2009) (Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972)).
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); 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)).
1. Length of Delay
" 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. " This latter inquiry is significant to the speedy ...