The United
States Court of Appeal has dismissed an appeal filed by Buruji Kashamu, a
chieftain of the Peoples’ Democratic Party, PDP, in Ogun State, to quash his
indictment for smuggling drugs into the U.S.
In a decision on the appeal by Circuit Judges Posner, Kanne, and
Tinder; the judges noted that Mr. Kashamu did not want to be extradited to the
U.S. to stand trial on the “very serious criminal charges” against him.’
In May, a U.S. District Court had equally denied a motion by Mr.
Kashamu, a close ally of President Goodluck Jonathan, to quash his indictment
by a U.S. court.
Mr. Kashamu and 14 others were, in 1998, charged by a federal
grand jury for their alleged involvement in an international conspiracy to
smuggle heroin into the US.
But the politician, a major campaigner for President Jonathan in
the South West, allegedly fled to the U.K. where repeated efforts by the U.S.
to extradite him failed, before he returned to Nigeria.
In the court ruling delivered on September 15 by Judge Posner,
the US court noted that Mr. Kashamu has remained in Nigeria, where he is living
openly as a prominent businessman and a politician belonging to the ruling
party.
“Although the United States has an extradition treaty with
Nigeria, our government has made no effort to extradite him….,” Judge Posner
said.
“He is correct that the district court has no
jurisdiction over him at present. But should he ever come to the United States,
whether 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. ‘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)’
“Only two possible avenues of relief remain open to him. One is
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 go to the United States and fall into the clutches of the federal
judiciary, he must rely entirely on mandamus.
“In opposing the petition for mandamus the Justice Department
tells us 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 judge noted.
The judge admitted that the US government’s optimism on
extraditing Mr. Kashamu may be a “whistle in the dark” because the government
had shared a similar sentiment when it had tried to extradite the appellant
from the UK.
“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 extradition
is a Sword of Damocles disrupting his life without our government having to
undergo the expense and uncertainty of seeking extradition of a foreign big
shot exonerated (though 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 judge added.
Mr. Kashamu had consistently claimed that the threat of
extradition proceedings against him had continued to inhibit his travels
outside Nigeria as well as impeded his business and political aspirations and
he, therefore, wants to quash it in the U.S. court.
Judge Posner noted that these were “reasonable concerns,” but
wondered why Mr. Kashamu had not shown up in the U.S. over the past 16 years to
obtain a determination of his guilt or innocence.
“When a suspected criminal flees from imminent prosecution,
becoming a fugitive before he is indicted, the statute of limitations on
prosecuting him is suspended,” said the judge.
“Similarly, 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 defendant is as much a fugitive in the
second case as in the first…,” the judge continued.
“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 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….
“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,” Judge
Posner said.
In 2009, Mr. Kashamu had, through a local counsel in the U.S.,
filed a motion to quash the arrest warrant and to dismiss the indictment
against him on the ground that the English court had found that he was not the
one charged with smuggling drugs into the US.
Two years later, he filed a follow-up motion arguing that his
Sixth Amendment right to a speedy trial had been violated and that the U.S.
government had violated his Fifth Amendment right to due process because it
lacked personal jurisdiction over him.
In the decision of the US District Court, last May, Judge
Charles Norgle had held that Mr. Kashamu had done everything within his power,
including document forgery as well as political pressure, to frustrate his
trial in the U.S.
“Kashamu’s actions in the London extradition proceeding created
a paper and testimonial trail that his brother, and not himself, was the
defendant charged in the instant case,” Judge Norgle had said in his 17-page
ruling.
“Kashamu’s ability to manipulate Nigerian officials, or at least
his ability to create forged documents, was also apparent from the proceedings.
This maneuvering, and the wall of protection Kashamu built around himself, made
it clear that efforts to extradite Kashamu from Nigeria would be futile.
“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,” the judge had added.
courtesy-PremiumTimes
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