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.