Buruji Kashamu v. DOJ, et al

Filing

Filed opinion of the court by Judge Posner. AFFIRMED. Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. [6813333-1] [6813333] [16-1004]

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In the

United States Court of Appeals
For the Seventh Circuit
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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 heroinimporting 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

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Guardian, Apr. 16, 2015, https://www.theguardian.com/
world/2015/apr/16/alleged-drug-kingpin-wanted-us-electedsenator-nigeria (visited Jan. 20, 2017).
In 1998 a grand jury in the Northern District of Illinois
had charged him and thirteen others with conspiracy to import heroin, in violation of 21 U.S.C. § 963. Eleven coconspirators 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 answering the still-pending charges that the Justice Department 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.

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Three years later Kashamu again appeared before the
court, this time petitioning for a writ of mandamus to dismiss the indictment on speedy-trial grounds. Again we
turned him down, this time on the ground that he had forfeited 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. authorities.” He claimed to have been tipped off that U.S. authorities, colluding with his political rivals, were planning to abduct 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 foreign 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 Enforcement Agency, along with two white men who Kashamu reasons must have been operatives of the United States Drug
Enforcement Administration, surrounded his Lagos residence and tried to arrest him on an “invalid provisional
warrant.” But, the complaint continues, he “refused to surrender,” and so the agents “laid siege … keeping him prisoner in his own home for six days, until a Nigerian federal

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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 abduction 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 narcotics charges, the Supreme Court has repeatedly construed
statutes similar to the Mansfield Amendment as directives to
federal agencies and their employees (i.e., “behave yourselves,” or face disciplinary action) rather than “as a conferral 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); Thompson 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 attempted 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 Kashamu complains—that U.S. agents actively participated in an
attempt by Nigerian agents to arrest him—was thus lawful.

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For all these reasons, the decision of the district court is
AFFIRMED.