In reviewing mandamus petition of indicted foreign
national residing in Kuwait, Seventh Circuit orders district court to rule on
motions to dismiss that challenge both international reach of substantive U.S.
criminal statutes and whether foreign national’s contacts with U.S. are
sufficient bases for criminal prosecution in U.S. court
In 2001, the U.S. Army contracted with Kellogg Brown &
Root (KBR), a U.S. company, to provide, inter alia, fuel tankers and related
services at the Kuwait airport. Jeff Alex Mazon, KBR’s procurement manager,
apparently struck a special deal with one Ali Hijazi (Petitioner) to provide
those services at an inflated price. Petitioner allegedly paid Mazon $1 million
in return.
Five years later, a federal grand jury indicted Petitioner
and Mazon in Illinois. Mazon eventually pled guilty. Petitioner did not appear,
but his counsel filed two motion to dismiss which the district court held in
abeyance until the court could arraign Petitioner. Apart from an unrelated trip
in 1993, Petitioner has not traveled to the U.S. or had any other meaningful
contacts with the U.S. In fact, it is possible that he did not even know that
the funds at issue were U.S. government funds.
But Petitioner failed to show up for his arraignment. The
U.S. does not have an extradition treaty with Kuwait. Petitioner is a Lebanese
citizen who lives in Kuwait. The Kuwaiti government has declined to surrender
him.
In 2008, Petitioner filed this petition for a writ of
mandamus in the U.S. Court of Appeals for the Seventh Circuit. The Court grants
Petitioner’s petition. It then explains its reasoning.
“Despite the breadth and importance of the issues implicated
by Petitioner’s motions to dismiss the indictment, the question before us is a
narrow one: is he entitled to a ruling at this time, or must he voluntarily travel
to the United States and present himself for arraignment before the court takes
his motions under advisement? ...”
“This court is authorized to issue a writ of mandamus
pursuant to 28 U.S.C. § 1651(a), the All Writs Act. [See also FED. R.APP. P.
21]. This writ is available in the federal courts only in extraordinary
circumstances, either ‘to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when it is
its duty to do so.’ ... Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35
... (1980) ...”
“The Supreme Court’s most recent treatment of this topic
appears in Cheney v. United States Dist. Court, 542 U.S. 367 (2004). Noting
that ‘the writ is one of the most potent weapons in the judicial arsenal’ the
Court laid out the three conditions that must be satisfied before it may
issue:”
“‘First, the party seeking issuance of the writ [must] have
no other adequate means to attain the relief he desires—a condition designed to
ensure that the writ will not be used as a substitute for the regular appeals
process. Second, the petitioner must satisfy the burden of showing that [his]
right to issuance of the writ is clear and indisputable. Third, even if the
first two prerequisites have been met, the issuing court, in the exercise of
its discretion, must be satisfied that the writ is appropriate under the
circumstances.’ ... ” [406‑7].
As for the first factor, standard procedures cannot resolve
the underlying criminal case. The U.S. cannot compel Petitioner to travel to
the U.S., and the Kuwaiti government has refused to cooperate in his surrender.
Furthermore, the U.S. cannot hold a criminal trial in
absentia. See Crosby v. United States, 506 U.S. 255 (1993). But Crosby does not
prohibit what Petitioner is asking for in his motions to dismiss—a pre‑appearance
adjudication of whether the criminal statutes in question apply
extraterritorially to his alleged conduct abroad. Thus, Petitioner is asking
for relief that lies within the power of the district court.
As for the second factor, the Court finds that Petitioner’s
right to issuance of the writ is clear and undisputable. “ ... Petitioner is
attempting to raise fundamental questions about the legislative reach of the
Major Fraud Act and the Wire Fraud Act. Whether we think of this as an issue
relating to legislative jurisdiction, ... , or as something going to the
court’s very power to act, there is no doubt that the question of how far a
statute reaches out to address conduct undertaken outside the United States, in
whole or in part, is a fundamental one. ...”
“The Supreme Court’s decision in F. Hoffmann‑La Roche Ltd.
v. Empagran, 542 U.S. 155 ... (2004), emphasizes the importance and delicacy of
the general issue that we face here: ‘... [T]his Court ordinarily construes
ambiguous statutes to avoid unreasonable interference with the sovereign
authority of other nations. ... This rule of construction reflects principles
of customary international law—law that (we must assume) Congress ordinarily
seeks to follow. See Restatement (Third) of the Foreign Relations Law of the
United States §§ 403(1), 403(2) (1986) (hereinafter Restatement) (limiting
(sic) the unreasonable exercise of prescriptive jurisdiction with respect to a
person or activity having connections with another State) ...’”
“This rule of statutory construction cautions courts to
assume that legislators take account of the legitimate sovereign interests of
other nations when they write American laws. It thereby helps the potentially
conflicting laws of different nations work together in harmony—a harmony
particularly needed in today’s highly interdependent commercial world.”
“ ... Many other decisions from the Supreme Court also
reflect the presumption (rebuttable to be sure) against extraterritorial
effect. While we have no problem with the proposition that the district court
was entitled to a reasonable time within which to rule on Petitioner’s motion,
the fact is that the court has now twice announced in orders that it is
deliberately not ruling, and in neither instance did the court hint that it had
not had enough time to consider the motion.”
“Its reasons ... relate instead to Petitioner’s decision not
to come to Illinois and [on] its concept of mutuality. What is important is
that a ruling on this motion is necessary before the prosecution can proceed,
and that there is no prospect of such a ruling ever taking place under the
approach the district court has taken.”
“Finally, mandamus is appropriate in this case. It raises
issues about the reach of U.S. law, and it has not been determined yet whether
Petitioner’s contacts with the U.S. are sufficient for prosecution. The court
orders that the district court rule on Petitioner’s motions to dismiss.” [408‑9].
Citation: In re Ali Hijazi, 589 F.3d. 401 (7th Cir.
2009).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
