In re: Hijazi, No. 08-3060

Defendant's petition for a writ of mandamus arising from his indictment for various fraud-related charges involving a contract with the United States Army to  provide goods and services to military locations throughout the world, including Kuwait, is granted under the three conditions set forth by the Supreme Court in Cheney v. U.S. Dist. Court and the district court is ordered to rule on defendant's motion to dismiss the indictment where: 1) even though ordinary proceedings do not provide an adequate alternative, defendant is asking for relief well within the power of the district court where, as a Lebanese citizen and resident of Kuwait, defendant is under no obligation to travel to the U.S. for his arraignment, there is no extradition treaty between the U.S. and Kuwait and Kuwait has formally refused to extradite him, and as long as the indictment hangs over defendant, he is prejudiced even if he does not travel to the U.S. as INTERPOL has been directed by U.S. to issue a red notice to arrest defendant if he enters their jurisdiction; 2) the right to the issuance of the writ is clear and indisputable as there is no doubt that the question of how far a statute, such as the Major Fraud Act and the Wire Fraud Act, reaches out to address conduct undertaken outside the U.S. is a fundamental one, and as more than enough time has passed, defendant is entitled to a ruling on his motions now; and 3) this case is an appropriate candidate for mandamus as defendant's arguments raise serious questions about the reach of U.S. law, and it remains to be seen whether the U.S. contacts on which the government relies are sufficient to support its prosecution.  Finally, with regards to the fugitive dis-entitlement doctrine and mutuality, although the district court correctly recognized that the doctrine does not apply to defendant's situation, the court took too narrow a view of the adverse consequences that defendant would suffer if he loses on his motion to dismiss.   

Read In re: Hijazi, No. 08-3060

Appellate Information

Appeal from the United States District Court for the Central District of Illinois

Decided December 11, 2009

Judges

Before:Posner, Wood, and Tinder, Circuit Judges

Opinion by Wood, Circuit Judge