Kashamu v. Department of Justice, No. 16-1004 (7th Cir. 2017)

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In 1998, Kashamu and others were charged with conspiracy to import heroin, 21 U.S.C. 963. Kashamu, refusing to appear (which would have required his presence in the U.S.), insisted that the crimes were committed by his dead brother. He surfaced in England six months later, beginning a four‐year unsuccessful extradition effort. Later Kashamu moved to dismiss the indictment, arguing that collateral estoppel barred his prosecution. The Seventh Circuit denied that motion, reasoning that the magistrate in extradition had not ruled on Kashamu’s guilt, but had only been unconvinced regarding Kashamu’s identity. Three years later Kashamu unsuccessfully sought mandamus to dismiss the indictment on speedy‐trial grounds. The Seventh Circuit concluded that he had forfeited that right by remaining a fugitive. In 2015, after his election to the Nigerian Senate, Kashamu filed suit, claiming to have information that U.S. authorities were planning to abduct him in Nigeria. He cited the Mansfield Amendment, 22 U.S.C. 2291(c)(1), which states that “no officer or employee of the United States may directly effect an arrest in any foreign country as part of any foreign police action with respect to narcotics control efforts.” The Seventh Circuit affirmed dismissal, holding that the Amendment does not create a private right of action. Kashamu’s suit also confused a lawful attempt by U.S. agents to arrest him on a provisional warrant (a first step toward extradition) in coordination with local law enforcement, with an attempted abduction.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1004 BURUJI KASHAMU, Plaintiff Appellant, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CV 3159 — Charles R. Norgle, Judge. ____________________ SUBMITTED NOVEMBER 18, 2016 — DECIDED JANUARY 23, 2017 ____________________ Before POSNER and KANNE, Circuit Judges. POSNER, Circuit Judge. Buruji Kashamu, a fugitive for nearly two decades and the alleged leader of a heroin importing conspiracy that inspired the hit show “Orange is the New Black,” appears before us for a third time not in person but through counsel because he is unwilling to risk being present in the United States, and in fact has never in his life been in the United States. See “Man Who Inspired Orange is the New Black Elected Senator in Nigeria” The 2 No. 16 1004 Guardian, Apr. 16, 2015, https://www.theguardian.com/ world/2015/apr/16/alleged drug kingpin wanted us elected senator nigeria (visited Jan. 20, 2017, as were the other web sites cited in this opinion). In 1998 a grand jury in the Northern District of Illinois had charged him and thirteen others with conspiracy to im port heroin, in violation of 21 U.S.C. § 963. Eleven co conspirators pleaded guilty, and one other was convicted after trial. But Kashamu, refusing to appear (which would have required his presence in the United States), insisted that the authorities were trying to pin crimes committed by his dead brother—who he said bore a striking resemblance to him—on him. The present suit is Kashamu’s latest attempt to avoid an swering the still pending charges that the Justice Depart ment has brought against him. When he surfaced in England six months after his indictment Justice Department lawyers commenced what turned out to be a four year legal battle seeking his extradition to the United States—unsuccessfully. Later Kashamu moved to dismiss the American indictment on the ground that the doctrine of collateral estoppel barred his prosecution by the United States. We denied that motion, explaining that the English magistrate’s refusal to authorize his extradition to the United States had been based simply on the Justice Department’s inability to convince the judge that the person it was seeking to extradite was indeed Kashamu. United States v. Kashamu, 656 F.3d 679 (7th Cir. 2011). Because the magistrate had not ruled on Kashamu’s guilt or innocence of the U.S. charges, the refusal to extradite him did not preclude further efforts to prosecute him. Id. at 688. No. 16 1004 3 Three years later Kashamu again appeared before the court, this time petitioning for a writ of mandamus to dis miss the indictment on speedy trial grounds. Again we turned him down, this time on the ground that he had for feited any speedy trial right by remaining a fugitive, and noting that if “he wants to fight the charges, he has only to fly from Lagos to Chicago.” In re Kashamu, 769 F.3d 490, 494 (7th Cir. 2014). Rather than do that, Kashamu devised a new strategy. He filed suit in the district court in Chicago in April 2015— one month after his election to the Nigerian Senate—asking the court to “enjoin his abduction abroad by U.S. authori ties.” He claimed to have been tipped off that U.S. authori ties, colluding with his political rivals, were planning to ab duct him in Nigeria and drag him to Chicago to stand trial before he could be sworn into office as a Nigerian senator. He relied on a provision of the Mansfield Amendment, 22 U.S.C. § 2291(c)(1), that states that “no officer or employee of the United States may directly effect an arrest in any for eign country as part of any foreign police action with respect to narcotics control efforts.” A month after filing the suit, Kashamu amended the complaint to allege that his fear of abduction had nearly come true: agents of Nigeria’s National Drug Law Enforce ment Agency, along with two white men who Kashamu rea sons must have been operatives of the United States Drug Enforcement Administration, surrounded his Lagos resi dence and tried to arrest him on an “invalid provisional warrant.” But, the complaint continues, he “refused to sur render,” and so the agents “laid siege … keeping him pris oner in his own home for six days, until a Nigerian federal 4 No. 16 1004 court ordered them to cease their activities and depart from the premises.” He speculates that U.S. agents directed and coordinated the entire affair, and that U.S. authorities still are trying to extradite him. In the absence of injunctive relief, he maintains, he is vulnerable to “a very real threat of ab duction by U.S. authorities.” The district court dismissed Kashamu’s complaint on the ground that the Mansfield Amendment does not create a private right of action. Although the statute forbids federal employees to arrest a person in a foreign country on narcot ics charges, the Supreme Court has repeatedly construed statutes similar to the Mansfield Amendment as directives to federal agencies and their employees (i.e., “behave your selves,” or face disciplinary action) rather than “as a confer ral of the right to sue” the agencies and their employees. See, e.g., Armstrong v. Exceptional Child Center, 135 S. Ct. 1378, 1387 (2015); Alexander v. Sandoval, 532 U.S. 275 (2001); Thomp son v. Thompson, 484 U.S. 174 (1981); California v. Sierra Club, 451 U.S. 287 (1981). Kashamu’s suit further lacks merit because it confuses an attempt by U.S. government agents to arrest him on a provisional warrant (a first step toward possible extradition) in coordination with local law enforcement, with an at tempted abduction. The Mansfield Amendment is explicit in not prohibiting an employee of the United States, provided he has the approval of the United States chief of mission, from “being present when foreign officers are effecting an arrest or from assisting foreign officers who are effecting an arrest.” 22 U.S.C. § 2291(c)(2). The conduct of which Kasha mu complains—that U.S. agents actively participated in an attempt by Nigerian agents to arrest him—was thus lawful. No. 16 1004 5 For all these reasons, the decision of the district court is AFFIRMED.

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