Argued May 20, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:04-cr-00056-RTR-1 -- Rudolph T. Randa, Judge.
For United States of America, Plaintiff - Appellee: James Joseph Fredricks, Attorney, Shana Marie Wallace, Esq., Attorney, Department of Justice, Antitrust Division, Appellate Section, Washington, DC; Carla M. Stern, Attorney, Department of Justice, Antitrust Division, Chicago, IL.
For Raza Bokhari, Defendant - Appellant: H. Christopher Bartolomucci, Attorney, Brian J. Field, Attorney, Bancroft Pllc, Washington, DC.
Before KANNE, TINDER, and HAMILTON, Circuit Judges.
Tinder, Circuit Judge . Raza Bokhari appeals the denial of his pretrial motion to dismiss the indictment and quash the arrest warrant pending against him in the United States District Court for the Eastern District of Wisconsin. This interlocutory appeal is complicated by the fact that Bokhari currently resides in Pakistan. Efforts to extradite him have so far been unsuccessful, and he apparently has no intention of returning to the United States. As explained below, we now dismiss part of Bokhari's appeal as an improper attempt to seek interlocutory review of a non-final pretrial order. We otherwise affirm the district court's decision, albeit on different grounds.
Bokhari is a dual citizen of the United States and Pakistan. In 2000 he resided in Wisconsin, where he had lived for more than a decade. Over the next two years, Bokhari allegedly conducted a fraudulent scheme with his brothers, Haider and Qasim Bokhari, in which the trio bilked a nonprofit entity that administered the E-Rate Program, a federal project designed to improve internet and other telecommunications services for disadvantaged schools, out of an estimated $1.2 million. According to the government, the brothers used Raza Bokhari's experience with the E-Rate program to fabricate and submit fraudulent work invoices and related documents claiming unearned compensation for work on various schools' infrastructures that was never performed. In 2001, as the alleged fraud was still ongoing, Bokhari moved to Pakistan, where, according to the government, he continued directing the illegal scheme.
In September of 2004, a federal grand jury in the Eastern District of Wisconsin returned an eight-count superseding indictment charging the three brothers with mail fraud, money laundering, and related charges. Haider and Qasim Bokhari each pleaded guilty and were sentenced to more than five years in prison.
The government then submitted an extradition request to Pakistan in 2005, seeking Bokhari's return to United States custody. Bokhari contested the request in Pakistani court, and the Pakistani government sent an attorney to plead the case for extradition. The United States provided an affidavit from Qasim Bokhari implicating Raza, along with a copy of the relevant federal indictment and a number of affidavits from 1) the non-profit the brothers defrauded, 2) the prosecutor handling the case, and 3) agents of the FBI and the IRS. Bokhari responded, as relevant here, that the United States' evidence was inadmissible because he was not able to cross-examine any of the affiants. In 2007, following a hearing, a Pakistani magistrate declined to authorize extradition, finding that the United States had failed to present a prima facie case of Bokhari's guilt. The magistrate discounted the indictment and affidavits from government officials as
mere accusations that relied entirely on Qasim Bokhari's affidavit for factual support. And the magistrate characterized Qasim's affidavit as " the uncorroborated testimony of an accomplice," which was insufficient to support a conviction under Pakistani law. The Pakistani judge also speculated that Qasim Bokhari could have secured an early release in exchange for his testimony, in which case he would be an interested witness.
The Pakistani magistrate instructed the United States that it would have to " further consolidate and substantiate its case to make a prima facie case for the extradition of the accused." The magistrate indicated that the United States should provide Pakistan with bank records reflecting the transactions underlying the alleged fraud, along with other evidence, relating to such topics as 1) Haider Bokhari's role in the scheme, 2) the possible involvement of Bokhari's mother and sister-in-law, and 3) any potential leniency the United States planned to show Qasim Bokhari in exchange for his testimony. Absent such evidence, the court refused to order Raza Bokhari's extradition. Pakistan later informed the United States that an appeal of the magistrate's decision was underway, but since then communication between the two nations regarding the case, and cooperation regarding extradition in general, appears to have broken down.
In 2009, the United States secured a " red notice" through Interpol, retroactively effective starting in 2004, which notifies all member states that they should arrest Bokhari should he enter their jurisdiction. (The government apparently intended to obtain the red notice in 2004, but for some reason no such notice was issued.) Because Bokhari has avoided travelling outside of Pakistan, the red notice has not aided the government's efforts in returning Bokhari to the United States and compelling him to stand trial.
Back in the United States, Bokhari's attorneys filed a motion on his behalf in 2013, seeking to dismiss the indictment and quash the arrest warrant pending against him, on two grounds. First, Bokhari argued that the district court should have dismissed the indictment because the Pakistani magistrate had found insufficient admissible evidence to sustain a prima facie case against him, and that concerns of international comity require American courts to treat that decision as a finding that the United States lacked probable cause to indict and try him under Federal Rule of Criminal Procedure 5.1(f). Second, Bokhari contended that the government had violated his Sixth Amendment right to a speedy trial.
The magistrate judge in the Eastern District of Wisconsin recommended denying the motion on its merits. The magistrate judge found that Bokhari himself caused any delay in his trial by living outside the country, and that he did not actually desire a speedy trial and therefore could not demonstrate prejudice. He further reasoned that, even though the Pakistani magistrate had found the case against Bokhari insufficient to justify his extradition, principles of international comity did not require the federal district court to dismiss the indictment. The magistrate judge noted that the federal indictment served as a formal finding of probable cause justifying Bokhari's trial, ...