The court held that the indictment against him had no expiration date. The court held: “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.” Kashamu, a dual citizen of Nigeria and Benin, was charged in an indictment returned by a federal grand jury in Chicago, along with 13 other persons, with conspiracy to import heroin into the United States and distribute it, in violation of 21 U.S.C. § 963.
The U.S. government believes that Kashamu was the leader of the conspirators. He was indicted both in his own name and under what the government believed to be two aliases that he used: “Alaji” and “Kasmal”. Based on the refusal of a magistrate in the United Kingdom to grant a request by the U.S. to extradite him, Kashamu filed an application in the U.S. seeking to nullify his indictment. The UK magistrate had refused to grant the application to extradite Kashamu on the ground that the U.S. did not conclusively prove that he was the same Alaji wanted in the U.S. for trial.
The court noted that 11 other defendants indicted alongside Kashamu pleaded guilty, one proceeded to trial and was convicted, and another could not be found and remained a fugitive. The court noted that despite knowing that he was wanted in the U.S., “Kashamu remains in Nigeria, living openly, a prominent businessman and a politician belonging to the ruling party”. The court wondered that “although the United States had an extradition treaty with Nigeria, our government has made no effort to extradite him”. While asking him to buy a flight ticket to U.S. to come and stand trial, the court said: “There was a good deal of evidence against him. We noted in our previous opinion that among other bits of evidence, Kashamu’s co-defendants who had pleaded guilty had admitted their participation in the charged conspiracy and identified ‘Alaji’as the leader of the conspiracy. “Two of them identified Kashamu as Alaji in a photographic lineup, and in the extradition proceeding the government submitted their affidavits to that effect.” In opposing the petition for mandamus the Justice Department had told the court that “the prospects for extradition (from Nigeria) have recently improved and, as a result, the government is optimistic about extraditing Kashamu”. The court held that Kashamu’s motion to dismiss the indictment against him was 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 court, however, noted that it might be difficult to extradite him because he was a very influential person in Nigeria. “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 court held. Kashamu had argued the threat to extradite him had prevented him from travelling outside Nigeria lest the United States seek extradition of him from another country, as it did albeit unsuccessfully when it found him in the United Kingdom. He also claimed that the outstanding indictment had besmirched his reputation and by doing so had impeded his business and political ambitions in Nigeria. But the court held: “These are reasonable concerns, but do not support the relief that he seeks from us.
“He was indicted 16 years ago. At any time during this long interval he had only to show up in the Federal District Court in Chicago 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. “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 court found that the indictment against him to be very serious criminal charges. The court noted that one of Kashamu’s co-defendants was sentenced to 10 years in prison. The judge said: “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; 21 U.S.C. § 960(b)(1)(A), authorises a life sentence for a conspiracy to import at least a kilogramme 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,” the judge ruled. In his reaction to the judgment refusing his application to quash the indictment against him, Kashamu said he would fight till he got justice. In a statement he personally issued last night, Kashamu said that he had been cleared of the indictment by courts in Britain. He said that despite the British judgment and the defeats the Americans had suffered in their attempts to place a false accusation on him, they had neither attempted to extradite him nor withdraw the charges. He accused the U.S court of appeal of making ? some wide-ranging generalized statements, which were not borne out by the records. He said that the charge against him should have been quashed because the trial was delayed and no effort was made to extradite him.
He said ?”I have several complaints against that judgment and my lawyers are exploring the opportunities available for appeal.” “However before my political adversaries begin the usual perversion of truth I wish to make the following comments on the judgment for the records. “Again Mr. Posner has ignored the facts on record and the findings of the English Courts in coming to his conclusions that: I have no rights under the American Constitution because I have never been in the United States and “it would be very odd that someone with so attenuated a connection to the United States would have rights under the US Constitution”. “But no matter; even if the government is incorrect and Kashamu does have constitutional rights, he still loses, because they haven’t been violated”. He said that the court of appeal came to a wrong conclusion by holding that ?only two options were available to him. The first is to “return” to the U.S. and “stand trial and at the trial renew his motion for dismissal on the basis of the speedy trial clause” The second “is to obtain from us, as he is trying to do, a writ of mandamus ordering the District court to dismiss the indictment”. He said: “Judge Posner comes to these wrong conclusions in order to create a scenario of a stalemate between me and the U.S authorities whereby he posits that I will not come to the U.S. to fall into the clutches of the U.S. judiciary and that the U.S. authorities in turn have little hope of ever extraditing me to the U.S in view of my prominence in Nigeria and the findings of the British Courts, thus he then surmises: “as he won’t risk the first path to relief, which would require him to come to the United States and fall into the clutches of the federal judiciary, he must rely entirely on mandamus”. He said that the appeal court? proceeded to reject the application for mandamus for the reason that he had not come to the U.S. to “face the judicial music”.
According to him, the court feigns ignorance of the statistics that show a serious racial prejudice against blacks and foreigners (especially from developing countries) by the mainly white dominated federal judiciary of the United States. He said that the prejudice of the justice of the appeal court was patent in the casual manner it treated ‘this important matter and attempts to “call a dog a bad name in order to hang it.” He accused the court of trying to change a fundamental principle of criminal and International Human rights law by placing upon a suspect who had never been in the U.S. before (merely upon being informed of allegations against him before a U.S. Court) the responsibility to buy a cheap ticket from www.priceline.com, come to the U.S. to surrender himself into the arms of the U.S. judiciary (to prove his innocence of the charges against him?). He said: ?”I do not believe that justice has been done. And it is not over yet.”
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