Transnational Criminal Law - Non-Fugitive Foreign Defendant Entitled to Ruling on Motion to Dismiss Indictment for Lack of Jurisdiction without Surrendering - in Re Hijazi

By Cafarelli, Amie | Suffolk Transnational Law Review, Winter 2011 | Go to article overview
Save to active project

Transnational Criminal Law - Non-Fugitive Foreign Defendant Entitled to Ruling on Motion to Dismiss Indictment for Lack of Jurisdiction without Surrendering - in Re Hijazi


Cafarelli, Amie, Suffolk Transnational Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Transnational Criminal Law - Non-Fugitive Foreign Defendant Entitled to Ruling on Motion to Dismiss Indictment for Lack of Jurisdiction without Surrendering - in Re Hijazi
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?