Transnational criminal law - non-fugitive foreign defendant entitled to ruling on motion to dismiss indictment for lack of jurisdiction without surrendering - In re Hijazi.

Author:Cafarelli, Amie

Challenges to jurisdiction arise when the United States seeks to charge a foreign national under U.S. laws for conduct occurring outside U.S. territorial jurisdiction. (1) Adding to those challenges are situations when the United States does not have an extradition treaty with the country in which the foreign defendant resides; therefore, the defendant is under no legal obligation to appear before a U.S. court. (2) In In re Hijazi, (3) the Seventh Circuit addressed whether a non-fugitive foreign defendant was required to travel to the United States to be arraigned before he was entitled to a ruling on his motion to dismiss for lack of jurisdiction. (4) The court held that the defendant was under no legal obligation to travel to the United States and that he was entitled to a ruling on his motion prior to arraignment. (5)

Ali Hijazi, a Lebanese citizen and resident of Kuwait, was indicted in 2005 in the Central District of Illinois for violations of the Major Fraud Act and the Wire Fraud Act for alleged acts in Kuwait. (6) The indictment alleged that Hijazi, and a co-defendant Jeff Mazon, defrauded the U.S. Government by submitting inflated invoices to the U.S. Army under a contract for fuel tankers and related services. (7) Hijazi, who was in Kuwait at the time of the indictment, turned himself over to Kuwaiti authorities. (8) Because the United States and Kuwait do not have an extradition treaty, neither Hijazi nor Kuwait were under any legal obligation to surrender Hijazi to the United States for arraignment. (9)

With the assistance of U.S. counsel, Hijazi filed a motion to dismiss the indictment on the grounds that the U.S. District Court lacked jurisdiction over him. (10) The district court decided to hold the motion in abeyance, rather than rule on it, until Hijazi travelled to the United States for arraignment. (11) Hijazi filed a second motion to dismiss in December 2007, but the district court did not address it until September 2008 when the court ordered the motion be held in abeyance until Hijazi appeared before it. (12) In August 2008, more than three years after the indictment, Hijazi filed a petition for a writ of mandamus in the Seventh Circuit Court of Appeals, requesting that the district court be directed to rule on the motion and dismiss the indictment. (13) The Seventh Circuit held the district court had a duty to rule on Hijazi's motion because Hijazi was under no legal obligation to surrender himself for arraignment and the lower court was in a better position than the circuit court to rule on the merits of the motion. (14)

Customary international law recognizes that a state may prescribe laws with respect to conduct outside its territory that has substantial effects within its territory, unless exercising such jurisdiction would be unreasonable. (15) If the extraterritorial reach of a federal statute is ambiguous, U.S. courts ordinarily construe it "to avoid unreasonable interference with the sovereign authority of other nations." (16) Thus, the courts have created a rebuttable presumption that federal statutes regulate only domestic conduct. (17)

In a criminal case, a defendant may challenge the court's jurisdiction over him prior to trial by claiming that the indictment was defective or failed to invoke the court's jurisdiction. (18) The court has discretion to dismiss an indictment prior to arraignment. (19) Certain circumstances, however, may limit the court's discretion to rule on a motion. (20) If the defendant is a fugitive, then the fugitive disentitlement doctrine permits the court to refuse to rule on a motion by the defendant until he has surrendered. (21) Also, if the defendant is not present at the beginning of trial, then the trial may not proceed in absentia of the defendant, unless the defendant has consented. (22)

If a defendant believes that the court has exceeded its judicial authority or that it has failed to exercise a judicial duty with regard to the defendant's motion, he may petition a superior court for a writ of mandamus. (23) The writ of mandamus is a remedy that is only used in extraordinary circumstances when there has been a judicial usurpation of power. (24) In order for a writ to be issued, the petitioner must show that no other adequate remedy is available, that he has a clear and indisputable right to the writ, and that a writ is appropriate under the circumstances. (25)

In In re Hijazi, the Seventh Circuit issued a writ of mandamus directing the district court to rule on a foreign defendant's motion to dismiss the indictment for lack of jurisdiction. (26) The court also noted that the fugitive disentitlement doctrine could not be applied to Hijazi, a non-fugitive defendant, on the basis of mutuality. (27) The court found that the three conditions for mandamus were met because usual procedures did not afford Hijazi an adequate remedy, Hijazi had a clear and indisputable right to raise the issue of legislative jurisdiction, and mandamus was the appropriate remedy where serious questions were raised about the extraterritorial reach of the charging statutes. (28) The circuit court declined to rule on the merits of Hijazi's motion to dismiss and directed that task to the district court. (29)

The Seventh Circuit correctly held that the district court had a duty to rule on Hijazi's motion to dismiss. (30) While a court has discretion to rule on a motion to dismiss prior to a defendant's arraignment, the Supreme Court has warned that disentitlement is a severe...

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