Case Information
*1 Before K ANNE T INDER , H AMILTON , Circuit Judges . T INDER Circuit Judge
. Raza appeals pretrial quash arrest warrant pending against him Dis trict Court Eastern District Wisconsin. This inter locutory complicated fact cur rently resides Pakistan. Efforts extradite him so far been unsuccessful, apparently intention re turning States. explained below, now ‐ part Bokhari’s an improper attempt seek interlocutory review non ‐ final pretrial order. We otherwise affirm decision, albeit on dif ferent grounds.
I Background
Bokhari dual citizen and Paki stan. In resided in Wisconsin, where he lived more than decade. Over next two years, alleg edly conducted fraudulent scheme with brothers, Haider and Qasim Bokhari, trio bilked non profit entity administered E ‐ Rate Program, federal project designed improve internet and other telecommu nications services disadvantaged schools, out an esti mated $1.2 million. According government, broth ers used Raza experience with E Rate program fabricate submit fraudulent work invoices and related documents claiming unearned compensation work various schools’ infrastructures was never performed. In 2001, alleged fraud still ongoing, moved Pakistan, where, according government, continued directing illegal scheme. September federal grand jury Eastern
District Wisconsin returned eight count superseding charging three brothers mail fraud, money laundering, related charges. Haider Qasim each pleaded guilty were sentenced more than five years prison. then submitted request
Pakistan seeking return *3 3 14 ‐ 1103 custody. Bokhari contested the request in Pakistani court, and the Pakistani government sent an attorney plead the case extradition. The United States provided an affidavit from Qasim implicating Raza, along a copy the relevant federal and number affidavits from 1) non profit the brothers defrauded, 2) the prose ‐ cutor handling case, 3) agents FBI and IRS. responded, as relevant here, United States’ evidence was inadmissible was not able cross examine affiants. 2007, following hearing, Pakistani magistrate declined authorize extradition, find ing United States failed present prima facie case guilt. magistrate discounted in dictment affidavits officials as mere accusations relied entirely Qasim affidavit factual support. And magistrate characterized Qasim’s affidavit “the uncorroborated testimony an ac complice,” which insufficient support conviction Pakistani law. Pakistani judge also speculated Qasim could secured early release exchange testimony, interested witness.
‐ Pakistani magistrate instructed the United States have to “further consolidate and substantiate make prima facie case the the ac cused.” magistrate indicated the United States should provide Pakistan with bank records reflecting the transactions underlying the alleged fraud, along other evidence, relating such topics 1) Haider Bokhari’s role in scheme, 2) the possible involvement Bokhari’s mother sister in law, and 3) potential leniency United States planned show Qasim Bokhari in exchange testimony. Absent such evidence, refused order Raza extradition. Pakistan later informed United States magistrate’s was underway, but since then communication between two nations regarding case, cooperation regarding extra dition in general, appears have broken down. 2009, secured “red notice” through
Interpol, retroactively effective starting in 2004, noti fies all member states they should arrest Bokhari should enter their jurisdiction. (The apparently in tended obtain red notice but some reason such notice issued.) Because has avoided travelling outside Pakistan, red notice aided government’s efforts returning compelling him stand trial.
Back States, attorneys filed mo tion on behalf seeking indictment quash arrest warrant pending against him, two grounds. First, argued should dismissed Pakistani magis trate found insufficient admissible evidence sustain prima facie case against him, and that concerns interna tional comity require American courts treat that as a finding that lacked probable cause indict and try him Federal Rule Criminal Procedure 5.1(f). Second, Bokhari contended that had violated his Sixth Amendment right speedy trial.
The magistrate judge Eastern District Wisconsin recommended denying motion merits. magis trate judge found that himself caused any delay trial by living outside country, and did not actually desire therefore could not demonstrate prejudice. He further reasoned even though Pakistani magistrate had found against insufficient justify extradition, principles international comity did not require federal district court indictment. magistrate judge noted federal served as formal finding probable cause justifying trial, concluded find ing could not disturbed Pakistani deci sion made only prima facie, non preclusive judgment government’s case. did accept magistrate judge’s recommendation, instead denied motion without prejudice pursuant fugitive disentitlement doctrine. Although magistrate judge recommended against applying doctrine, found was fugitive fleeing prosecution, entitled adjudication before court. See Molinaro New Jersey U.S. (1970) (status “disentitles call upon the resources the Court for determination of his claims”). filed this appeal the district court’s order
denying his motion. In his opening brief raises the same two arguments pressed before district court. re ‐ sponse, government urges this court ap ‐ peal lack jurisdiction because district court’s deci ‐ sion is final order is not otherwise appealable un der collateral order doctrine. Failing requests affirm denial motion under disentitlement doctrine, or else hold two arguments relief are meritless.
II Discussion
A. Jurisdiction contends lacks jurisdic tion over appeal court’s order final: an entire is pending, should ever be returned States. See U.S.C. § Bo khari claims jurisdiction exists Section 1291, on grounds appealable collateral order or else satisfies practical final ity doctrine.
Under collateral order doctrine, order non final order be reviewable, “the order must conclusively determine disputed question, resolve important issue completely separate from merits action, ef fectively unreviewable final judgment.” Coopers & Lybrand Livesay U.S. (1978). “doctrine practical finality” “close cousin collat eral order exception.” Travis Sullivan (7th Cir. 1993). The doctrine provides in specific con texts, an order may treated final “if it final all practical purposes,” id. at 921, if it also “effectively unreviewable after a resolution merits of litiga tion.” Id. at 922; see id. at (Manion, J., dissenting) (“The doctrine practical finality applies where resolves legal issue in such a way judgment becomes, practical matter, dispositive order case.”). Travis involved remand social security disability claim to administrative law judge. Barring an interlocutory appeal, only way Secretary obtain review remand order been violate open himself contempt finding. Id. 923. “rejected ‘cumbersome, unseemly route obtaining appellate review’” favor hearing hand. (quoting Crowder Sullivan 1990)).
Against legal backdrop, now examine Bokhari’s two claims determine they fall within either these ex ceptions final judgment rule. Speedy Trial Claim
We lack jurisdiction hear Sixth Amendment speedy trial claim. argument contrary col lides squarely Supreme Court’s MacDonald Court “decline[d] exac erbate pretrial delay intruding upon accepted principles finality allow whose speedy trial been denied before trial obtain interlocutory appellate review.” U.S. (1978). Court reasoned collateral order doctrine did encompass rejected Sixth Amendment claim before trial because “a denial speedy trial grounds does not represent complete, formal and, trial court, final rejection ʹ s claim.” (citation and internal quotation marks omitted). Indeed, “[t]he resolution speedy trial claim necessitates careful assessment particular facts … . [M]ost speedy trial claims, therefore, are best considered only after relevant facts have been developed trial.” Id .
MacDonald ’s holding and reasoning apply full force Bokhari’s Sixth Amendment speedy trial claim. dis trict court’s order is not appealable collateral order as issue. Nor is it practically final, speedy trial claims can be, and preferably are, resolvable af ter trial. argues court’s order is final as pragmatic matter because, confidently states, will never return and has given up attempting extradite him. But even factual assertions are true, it not change fact scope and circumstances speedy trial claim—for example, length delay, whether and what extent prejudiced it, party bears responsibility—cannot become clear unless until held. trial *9 9 14 1103 claim therefore not final, but rather “inconclusive.” Id. at 859 (quotation marks omitted). result, we lack jurisdic ‐ tion to review it.
2. Comity Claim This court does jurisdiction, however, to review Bo ‐ khari’s claim comity Pakistani courts requires dis ‐ missal his indictment. States v. Kashamu , F.3d (7th Cir. 2011), court considered analogous involving Nigerian citizen who successfully resisted extra dition England. Kashamu, like Bokhari, moved to dis miss his indictment pursuant to foreign not extradite. Kashamu found it juris diction review claim collateral order doc trine. It likened Kashamu’s position defendant invoking his right against double jeopardy, which does fall squarely within doctrine. See Abney , U.S. 658–60 (1977). right against double jeopardy “protects defendant against being retried, not just against being convicted.” Kashamu F.3d 682. Similarly, “Kashamu [wa]s asserting right just not be convict ed, but tried, such right would be lost forever review were postponed until final judgment.” The district court’s Kashamu’s motion therefore 1) conclusively determined that would have to stand trial, 2) stood completely separate from the merits that trial, and 3) would have been effectively unreviewable if Kashamu been required to wait until trial to it. same analysis applies to case. essentially seeks relief three consequences his indictment: his continued inability to travel due to the red notice, the over hanging threat extradition, and prospect the trial that would inevitably follow. Kashamu seeks rem edy on ground foreign court undermined legitimacy his indictment. district refusal to dismiss charges conclusively denies him relief, we need comment merits his guilt or innocence review decision. Finally, wait until after trial hear appeal, his claim dismiss indictment without will be moot unreviewable. comity claim is appealable collateral order under Kashamu .
It is true denied motion without prejudice disentitlement doctrine, but is analogous one those rare instances “where dismissal without prejudice effectively final” “it impossible plaintiff amend filing remedy problem prompted dismissal.” Dolis Chambers 2006) (citation quotation marks omitted). By denying motion without prejudice, dis trict did keep open possibility could return, or extradited, then have heard court. But do so, first give up *11 11 No. 14 ‐ 1103 right return (or resist extradition) to this country. See Kashamu , 656 F.3d 682–83 (dismissal “protects [Kashamu] extradition, immediate sequel would be criminal trial.”). Moreover, ever does set foot country, either through or free will, comity argument would essentially vanish. It would certainly offend Pakistan United States try one its own citizens within its own territory, al ‐ leged crimes committed country. would therefore be unable use comity argument avoid tri al. Kashamu , we are confident “[i]f States succeeds extraditing [Bokhari] will put him on trial” regardless comity argument makes. district court’s decision conclusively de termined issue, subject our review.
This rare case. Most disentitlement decisions handed down district courts involve defendants who since been caught returned; these rulings are typi cally entered prejudice. [4] See, e.g., Mor gan , 254 F.3d 424, 426 (2d Cir. 2001). But are persuaded on these facts must be able district decision invoke doctrine, otherwise an erroneous application reviewable only through use extraordinary writ. In re Hijazi 2009), held defend ant’s abeyance pending his arraignment, thereby requiring seek mandamus. We think it is unnecessary resort that writ obtain this re ‐ view decision that is, all intents purposes, final. government responds that this case is distinguisha ‐ ble from Kashamu because Kashamu argued that foreign court decision had preclusive effect American courts, whereas merely asks this court respect Paki stani magistrate’s judgment out concern comity. But Kashamu court decided it had jurisdiction before deter mining whether English magistrate’s had any preclusive effect. (“So we have appellate ju risdiction turn question whether it is true argues that ruling rejecting request ex tradition can never collateral estoppel effect.”). Indeed, found that that ruling lacked collateral estoppel effect, but it still retained jurisdiction. far jurisdiction concerned, “[a]ll matters is if [Kashamu’s] defense collateral estoppel is sound, … protects him extradition, immediate sequel would be criminal trial.” 682–83. Likewise, if Bokhari’s comity claim is sound, he will be able avoid trial be dismissed. possibility claim may less sound than Kashamu’s is no bar our jurisdiction. We therefore exercise jurisdiction over portion appeal.
3. Mandamus
One final jurisdictional issue remains. perfuncto ‐ rily requests event finds appellate ju risdiction lacking either claim, we treat his appeal petition writ of mandamus pursuant All Writs Act. See U.S.C. § 1651. We have already decided exer cise jurisdiction over comity claim, so writ of manda mus unnecessary that purpose. As Sixth Amendment speedy trial claim, MacDonald bars us ex ercising mandamus jurisdiction, same reasons we already discussed. Supreme Court has instructed Sixth Amendment speedy trial claims are best left until after trial. MacDonald , U.S. such, can demonstrate “clear indisputable” right call upon our mandamus jurisdiction so we may re view pretrial his claim. See Cheney U.S. Dist. Court U.S. 380–81(2004). And light post trial option, also cannot establish lacks adequate alternative means obtaining relief, or circumstances justify invocation “extraordinary remedy” mandamus.
son why manner organizes orders should affect jurisdiction. comity claims are distinct, do consider them type “inextricably intertwined” issues could trigger “narrow doctrine” pendent appellate jurisdiction. Abelesz Erste Grp. Bank AG 2012). 14 ‐ 1103
B. The Fugitive Disentitlement Doctrine We now arrive at the district court’s basis for denying the indictment. The court held that was fugitive, that his refusal submit jurisdiction of the district court “disentitles [him] call upon resources Court determination of claims.” Molinaro , U.S. at We recognized that doctrine is “discretionary device.” Gutierrez Almazan Gonzales , F.3d 2006). Supreme Court has indicated when fugitive flees while proceedings are pending, “it is District Court authority defend its own dignity, sanctioning an act defiance occurred solely within domain.” Ortega Rodriguez United States , U.S. (1993). government urges us adopt abuse dis cretion standard judging whether properly applied doctrine. See Morgan F.3d 426–27 (finding abuse discretion).
What complicates issue, however, what con vinced magistrate judge recommend against dis trict invocation doctrine, question whether meets legal definition fugitive. Bo khari argues fugitive he left few years before indicted. He analo gizes case In re Hijazi 412–14, where had made only one unrelated visit States. held disentitlement doctrine did apply. persuasively responds
lived over decade before leaving Pakistan, possibly anticipation indictment. Un *15 15 like Hijazi, whose prosecution posed significant extraterrito riality concerns, should have understood that, citizen of the United States who had lived in country many years, obligation return to stand trial. And the United States cites authority the proposition in the context of claim, “[a] person can be said fugitive when, while abroad, they learn they are and make effort return United States face charges.” United States v. Blanco , F.2d (2d Cir. 1988). For statute of limitations pur poses, has held person becomes fugitive flees jurisdiction intent avoiding arrest or prosecution. States Marshall F.2d Cir. 1988). And term “fugitive” in federal statutes “has been held consistently require only proof absence indicting jurisdiction, regardless ʹ s intent.”
Nevertheless, we elect reach merits comity claim, will opine on disentitle ment issue. Identifying fugitives purposes disenti tlement doctrine can present complicated legal factual questions. explained, term “fu gitive” may take subtly different meanings used variety legal contexts. Reasonable minds can disagree, disagreed, about how term applies case hand. Instead deciding contested issue, we will fol low example set Second Circuit Baccollo (2d 1983), declined reject appeal pursuant disentitlement doctrine instead reached merits “the so plainly frivolous prefer dispose *16 16 No. 14 ‐ 1103 on that ground.” [6] Likewise, we “see no reason to risk the possibility of error” parsing out intent in leav ing the jurisdiction, or the legitimacy of attempts stay there given the States’ failure extradite him. ; see Dye F.3d 744, 2004) (This court may “affirm on any basis identified in the record that was argued below.”). We proceed merits.
C. Merits of Comity Claim Bokhari argues that district should dis missed out of concern international comi ty. He compares denial of extradition finding of no probable cause Federal Rule Criminal Procedure 5.1. And cites Kashamu proposition that “is like magistrate’s ruling that there isn’t probable cause hold person.” This claim no merit. problem ar ‐ gument is that Kashamu does not support cause; in fact, it dooms it. For although in that did liken a de ‐ nial of extradition a probable cause determination, although did note that “[c]omity a doctrine of deference based respect judicial decisions of foreign sover ‐ eigns,” id. Kashamu’s attempts indict ment against him failed. fatal flaw case, one, was a lack preclusive effect. Like initial probable cause hearing, a denial extradition does not prevent government from demonstrating probable cause under dif ferent record different proceeding. 687–88; see Fed. R. Crim. P. 5.1(f) (a magistrate judge’s finding no probable cause “does preclude later prose cuting defendant same offense.”). And did just indicting Bokhari. fact Pakistani magistrate’s came after no way undermines grand jury’s finding there was sufficient evidence go trial. “The grand jury gets say—without review, oversight, or second guessing—whether probable cause exists think per son committed crime.” Kaley S. Ct. (2014) (discussing “the inviolable grand jury find ing” probable cause). Rule 5.1(a) Federal Rules Criminal Procedure underscores point: “magistrate judge must conduct preliminary [probable cause] hearing unless … indicted.” Because was already indicted, additional probable cause hearing necessary, results such later hearing cannot un do grand jury’s work. does even attempt argue Pakistani
magistrate’s ruling preclusive effect Pakistani law (or law, one accepts Bokhari’s analogy pretrial finding no probable cause). Indeed, Paki stani magistrate ruled only must “fur ther consolidate substantiate its case” against Bokhari. This statement strongly indicates magistrate did consider ruling final word proceeding. is therefore essentially asking “give preclusive effect foreign court’s finding matter comity” Pakistan, Kashamu even though finding is preclusive own terms. That makes sense. We affirm court’s motion.
III Conclusion regarding claim
DISMISSED lack jurisdiction. otherwise AFFIRMED .
[1] Extradition between United States Islamic Republic Paki stan governed terms U.S. U.K. Extradition Treaty. Stat. 2122. See text following U.S.C. § (listing agree ments); Kasi Angelone n.2 2002). treaty applies Pakistan through its former colonial sovereign, Kingdom; Pakistani magistrate noted, Pakistan has notified consent treaty. However, has informed us practice, Pakistan has extradited country fraud related matter since extradited anyone since
[2] contends far as it can tell, Pakistani mag istrate’s currently appeal, it cites Interpol red notice evidence has given up trying extradite Bokhari. In response, represented already been rejected, points fact seven years passed since Pakistani magistrate’s decision. event, need resolve dispute decide case.
[3] Similarly, lack jurisdiction hear appeal regarding Rule 48(b) Federal Rules Criminal Procedure, authorizes due “unnecessary delay” bringing trial. This rule “driven same general considerations Sixth Amendment” right, Ward 2000) (citation internal quotation marks omitted), invokes functionally equivalent al ternative Sixth Amendment argument. Hearing ground implicate same jurisdictional obstacles out lined MacDonald .
[4] Originally, Kashamu exception. initially dis missed defendant’s motion without prejudice pursuant fugi tive disentitlement doctrine, Kashamu F. Supp. 2d 863, (N.D. Ill. 2009), but then reconsidered denied merits, CR WL (N.D. Ill. July 2010).
[5] At oral argument, contended could hear en tire appeal—involving both comity claims—if jurisdiction over either issue. He suggested he is appealing single order denying motion, entitled ap peal whole order can it. But there good rea
[6] Granted, in Baccollo Second Circuit was deciding whether invoke disentitlement doctrine itself, not reviewing district court’s use it. Nevertheless, we find that discretionary nature doctrine per mits us avoid examination term “fugitive,” applied case.
[7] To clear, reaching merits, we do way suggest did err finding fugitive, or abused its discretion applying doctrine him. Nor do we opine on what appropriate standard review aspect be. We instead rely observation “[t]he disentitlement doctrine stands proposition those who flee from judicial process may benefit from it.” CR ‐‐‐ F. Supp. 2d ‐‐‐ WL 37349, *1 (E.D. Wis. Jan. 2014). will see, will receive benefit filing indictment.