United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
the Court is Defendant Osama Abdel Aziz Abu-Shawish's
(“Abu-Shawish”) motion to dismiss this action and
quash the warrant for his arrest in connection with this
matter. (Docket #308). For the reasons stated below, the
Court must deny the motion.
November 2004, a federal grand jury in the Eastern District
of Wisconsin returned a six-count fourth superseding
indictment in this matter.Count One charges Abu-Shawish and
several members of his family with conspiracy to commit
offenses against or defraud the United States, in violation
of 18 U.S.C. § 371. (Docket #198 at 7-10). Count Five
charges Abu-Shawish and a co-conspirator with visa fraud, in
violation of 18 U.S.C. § 1546(a). Id. at 14. He
has never been arrested in connection with this action and,
as a result, the indictment remains pending.
had been no appearance or communication from Abu-Shawish
until March 8, 2016, when the Court received a motion which
was purportedly authored by him. (Docket #308). The motion
requests an order dismissing the charges against him in this
case, vacating the arrest warrant, and removing his name from
Interpol's fugitive/wanted list. Id. at 1.
Abu-Shawish generally alleges a conspiracy by law enforcement
to investigate Muslims or persons of Arabic descent,
including himself and his family. See Id. at 2. He
also claims, incorrectly, that the charges against him have
been dismissed. Id. at 3. In fact, the charges
against his co-defendant, Mhammad Abu-Shawish, have been
dismissed after reversal of his conviction before the Court
of Appeals, see (Docket #299), and the charges
pending in the prior indictments have also been dismissed,
see (Docket #219). Yet the charges in the fourth
superseding indictment remain pending as to Osama
alleges that he is a resident of Amman, the capital of
Jordan. (Docket #308 at 3). He was residing there at the time
the charges were filed against him in this case, see
id., and the fourth superseding indictment appears to
allege that his involvement in the criminal conspiracy
occurred entirely in Jordan, see (Docket #198 at 4).
He asserts that at some point he was ordered by Interpol to
appear in court there for an extradition proceeding in
connection with this case. Id. The Jordanian court
apparently found that he could not be extradited and released
him. Id. Nevertheless, the charges against him in
this country remain pending and, according to him, he remains
on the Interpol wanted list. Id. His argument for
dismissal appears to rest on notion that the case against him
in this District has already been dismissed and, therefore,
that the arrest warrant should be quashed. See Id.
Alternatively, he may be claiming that because the Jordanian
authorities apparently found insufficient evidence to
extradite him, the indictment should be dismissed. See
government opposes Abu-Shawish's request. (Docket #310).
The government, relying on the fugitive disentitlement
doctrine, see Molinaro v. New Jersey, 396 U.S. 365,
366 (1970), contends that because he has never appeared and
submitted to the jurisdiction of the United States, he cannot
obtain relief from one of its courts. (Docket #310 at 2). The
government believes that either this member of the
Abu-Shawish family, or someone else acting on his behalf, is
attempting to mislead the Court into believing that there are
no pending charges against him in order to pave the way for
his international travel. Id. at 2-3.
Court concludes that Abu-Shawish's motion must be denied,
but not for the reason advanced by the government. In re
Hijazi, 589 F.3d 401, 412 (7th Cir. 2009), dictates that
a defendant who has never set foot in the United States and
has not avoided extradition proceedings cannot properly be
considered a “fugitive” for purposes of the
fugitive disentitlement doctrine because he has not actually
fled from justice. Abu-Shawish fits the bill of the fugitive
even less than the individual in Hijazi, for that
man had at least visited this country once before.
Id. Here, by contrast, there is no evidence that
Abu-Shawish has ever entered the United States, and the
fourth superseding indictment suggests that he carried out
his part in these crimes from his home in Jordan. Less apt
still is United States v. Bokhari, 757 F.3d 664, 672
(7th Cir. 2014), also cited by the government, in which the
defendant had lived in the United States for over a decade
and had engaged in some of the relevant criminal conduct here
before moving abroad. Thus, the Court is not convinced, based
on the record before it, that Abu-Shawish qualifies as a
fugitive for purposes of applying the fugitive disentitlement
Court need not decide the issue conclusively, for
Abu-Shawish's motion must be denied in any event. His
motion totals three pages in length and cites no law or
authority for the relief sought. At best, the motion
insinuates that the charges against Abu-Shawish are the
result of a reactionary backlash in light of the September
11, 2001 terrorist attacks, but he provides no more than
speculation to support this argument, and he does not connect
the allegation to any legal ground supporting dismissal.
Further, he is simply incorrect in his belief that the
charges against him have been dismissed. Finally, to the
extent Abu-Shawish believes that the indictment must be
dismissed out of concern for international
comity-i.e., respecting the Jordanian court's
refusal to extradite him-the Seventh Circuit does not readily
entertain such arguments. Bokhari, 757 F.3d at 673
(denial of extradition has no preclusive effect against an
American grand jury issuing an indictment); see also
United States v. Kashamu, 656 F.3d 679, 688 (7th Cir.
2011). Because of these fatal infirmities in
Abu-Shawish's motion, like the Court of Appeals in
Bokhari, the Court can deny the motion without
deciding the fugitive disentitlement question.
Bokhari, 757 F.3d at 672-73.
IT IS ORDERED that Defendant Osama Abdel Aziz
Abu-Shawish's motion to dismiss and to quash his arrest
warrant (Docket #308) be and the same is hereby DENIED; and
FURTHER ORDERED that Defendant's motion to expedite
resolution of his pending motion (Docket #309) be and the
same is hereby DENIED as moot.
There actually were two fourth
superseding indictments in this case, labeled “A”
and “B.” See (Docket #216 at 1).
Indictment B is the indictment at issue here; Indictment A
was directed solely at one of Abu-Shawish's
co-defendants. See Id. The ...