In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1103
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RAZA BOKHARI,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:04‐cr‐00056‐RTR‐1 — Rudolph T. Randa, Judge.
____________________
ARGUED MAY 20, 2014 — DECIDED JULY 3, 2014
____________________
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 Dis‐
trict Court for the Eastern District of Wisconsin. This inter‐
locutory appeal is complicated by the fact that Bokhari cur‐
rently resides in Pakistan. Efforts to extradite him have so far
been unsuccessful, and he apparently has no intention of re‐
turning to the United States. As explained below, we now
2 No. 14‐1103
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 dif‐
ferent grounds.
I Background
Bokhari is a dual citizen of the United States and Paki‐
stan. In 2000 he resided in Wisconsin, where he had lived for
more than a decade. Over the next two years, Bokhari alleg‐
edly conducted a fraudulent scheme with his brothers,
Haider and Qasim Bokhari, in which the trio bilked a non‐
profit entity that administered the E‐Rate Program, a federal
project designed to improve internet and other telecommu‐
nications services for disadvantaged schools, out of an esti‐
mated $1.2 million. According to the government, the broth‐
ers 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
No. 14‐1103 3
custody.1 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 prose‐
cutor 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, find‐
ing that the United States had failed to present a prima facie
case of Bokhari’s guilt. The magistrate discounted the in‐
dictment 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 ac‐
complice,” 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.
1 Extradition between the United States and the Islamic Republic of Paki‐
stan is governed by the terms of the 1931 U.S.‐U.K. Extradition Treaty. 47
Stat. 2122. See text following 18 U.S.C. § 3181 (listing extradition agree‐
ments); Kasi v. Angelone, 300 F.3d 487, 493 n.2 (4th Cir. 2002). The treaty
applies to Pakistan through its former colonial sovereign, the United
Kingdom; as the Pakistani magistrate noted, Pakistan has notified its
consent to the treaty. However, the United States has informed us that, in
practice, Pakistan has not extradited a fugitive to this country in a fraud‐
related matter since 1984, and has not extradited anyone to the United
States since 2008.
4 No. 14‐1103
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 ac‐
cused.” 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 extra‐
dition in general, appears to have broken down.
In 2009, the United States secured a “red notice” through
Interpol, retroactively effective starting in 2004, which noti‐
fies all member states that they should arrest Bokhari should
he enter their jurisdiction. (The government apparently in‐
tended 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 mo‐
tion 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 magis‐
trate had found insufficient admissible evidence to sustain a
No. 14‐1103 5
prima facie case against him, and that concerns of interna‐
tional 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 magis‐
trate 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, and concluded that this find‐
ing could not be disturbed by a Pakistani extradition deci‐
sion that made only a prima facie, non‐preclusive judgment
as to the government’s case.
The district court did not accept the magistrate judge’s
recommendation, and instead denied Bokhari’s motion
without prejudice pursuant to the fugitive disentitlement
doctrine. Although the magistrate judge had recommended
against applying the doctrine, the district court found that
Bokhari was a fugitive fleeing from prosecution, and that he
therefore was not entitled to an adjudication of any motion
before the court. See Molinaro v. New Jersey, 396 U.S. 365, 366
(1970) (status as a fugitive “disentitles the defendant to call
6 No. 14‐1103
upon the resources of the Court for determination of his
claims”).
Bokhari filed this appeal of the district court’s order
denying his motion. In his opening brief he raises the same
two arguments he pressed before the district court. In re‐
sponse, the government urges this court to dismiss the ap‐
peal for lack of jurisdiction because the district court’s deci‐
sion is not a final order and is not otherwise appealable un‐
der the collateral order doctrine. Failing that, the United
States requests that this court affirm the denial of Bokhari’s
motion under the fugitive disentitlement doctrine, or else
hold that his two arguments for relief are meritless.
II iscussion
D
A. Jurisdiction
The government contends that this court lacks jurisdic‐
tion over Bokhari’s appeal because the district court’s order
was not final: an entire trial is pending, should Bokhari ever
be returned to the United States. See 28 U.S.C. § 1291. Bo‐
khari claims jurisdiction exists under Section 1291, on the
grounds that the district court’s denial of his motion is an
appealable collateral order or else satisfies the practical final‐
ity doctrine.
Under the collateral order doctrine, in order for a non‐
final order to be reviewable, “the order must conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be ef‐
fectively unreviewable on appeal from a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The
“doctrine of practical finality” is a “close cousin of the collat‐
eral order exception.” Travis v. Sullivan, 985 F.2d 919, 922
No. 14‐1103 7
(7th Cir. 1993). The doctrine provides that, in specific con‐
texts, an order may be treated as final “if it is final for all
practical purposes,” id. at 921, and if it is also “effectively
unreviewable after a resolution of the merits of the litiga‐
tion.” Id. at 922; see id. at 925 (Manion, J., dissenting) (“The
doctrine of practical finality applies where the district court
resolves a legal issue in such a way that judgment becomes,
as a practical matter, the dispositive order in the case.”).
Travis involved a district court’s remand of a social security
disability claim to an administrative law judge. Barring an
interlocutory appeal, the only way for the Secretary to obtain
review of the remand order would have been to violate it
and open himself to a contempt finding. Id. at 923. The court
“rejected this ‘cumbersome, unseemly route for obtaining
appellate review’” in favor of hearing the case at hand. Id.
(quoting Crowder v. Sullivan, 897 F.2d 252, 253 (7th Cir.
1990)).
Against that legal backdrop, we now examine Bokhari’s
two claims to determine if they fall within either of these ex‐
ceptions to the final judgment rule.
1. The Speedy Trial Claim
We lack jurisdiction to hear Bokhari’s Sixth Amendment
speedy trial claim. Bokhari’s argument to the contrary col‐
lides squarely with the Supreme Court’s decision in United
States v. MacDonald, in which the Court “decline[d] to exac‐
erbate pretrial delay by intruding upon accepted principles
of finality to allow a defendant whose speedy trial motion
has been denied before trial to obtain interlocutory appellate
review.” 435 U.S. 850, 863 (1978). The Court reasoned that
the collateral order doctrine did not encompass an appeal of
a rejected Sixth Amendment speedy trial claim before trial
8 No. 14‐1103
because “a denial of a motion to dismiss on speedy trial
grounds does not represent a complete, formal and, in the
trial court, a final rejection of the defendantʹs claim.” Id. at
858 (citation and internal quotation marks omitted). Indeed,
“[t]he resolution of a speedy trial claim necessitates a careful
assessment of the particular facts of the case … . [M]ost
speedy trial claims, therefore, are best considered only after
the relevant facts have been developed at trial.” Id.
MacDonald’s holding and reasoning apply with full force
to Bokhari’s Sixth Amendment speedy trial claim. The dis‐
trict court’s order is therefore not an appealable collateral
order as to that issue. Nor is it practically final, because
speedy trial claims can be, and preferably are, resolvable af‐
ter trial. Bokhari argues that the district court’s order is final
as a pragmatic matter because, he confidently states, he will
never return to the United States and the government has
given up attempting to extradite him. But even if Bokhari’s
factual assertions are true,2 it would not change the fact that
the scope and circumstances of Bokhari’s speedy trial
claim—for example, the length of the delay, whether and to
what extent Bokhari was prejudiced by it, and which party
bears responsibility—cannot become clear unless and until a
trial is held. The district court’s denial of his speedy trial
2 The United States contends that, as far as it can tell, the Pakistani mag‐
istrate’s decision is currently under appeal, and it cites the Interpol red
notice as evidence that it has not given up trying to extradite Bokhari. In
response, Bokhari represented that the appeal has already been rejected,
and points to the fact that seven years have passed since the Pakistani
magistrate’s decision. In any event, we need not resolve this dispute to
decide this case.
No. 14‐1103 9
claim was therefore not final, but rather “inconclusive.” Id. at
859 (quotation marks omitted). As a result, we lack jurisdic‐
tion to review it.3
2. The Comity Claim
This court does have jurisdiction, however, to review Bo‐
khari’s claim that comity with Pakistani courts requires dis‐
missal of his indictment. In United States v. Kashamu, 656 F.3d
679 (7th Cir. 2011), this court considered an analogous case
involving a Nigerian citizen who successfully resisted extra‐
dition from England. Kashamu, like Bokhari, moved to dis‐
miss his indictment pursuant to the foreign court’s decision
not to extradite. The Kashamu court found that it had juris‐
diction to review this claim under the collateral order doc‐
trine. It likened Kashamu’s position to that of a defendant
invoking his right against double jeopardy, which does fall
squarely within the doctrine. See Abney v. United States, 431
U.S. 651, 658–60 (1977). The right against double jeopardy
“protects a defendant against being retried, and not just
against being convicted.” Kashamu, 656 F.3d at 682. Similarly,
“Kashamu [wa]s asserting a right not just not to be convict‐
ed, but not to be tried, and such a right would be lost forever
if review were postponed until final judgment.” Id. at 681.
3 Similarly, we lack jurisdiction to hear Bokhari’s appeal regarding Rule
48(b) of the Federal Rules of Criminal Procedure, which authorizes the
district court to dismiss an indictment due to “unnecessary delay” in
bringing the defendant to trial. This rule is “driven by the same general
considerations as the Sixth Amendment” speedy trial right, United States
v. Ward, 211 F.3d 356, 362 (7th Cir. 2000) (citation and internal quotation
marks omitted), and Bokhari invokes it as a functionally equivalent al‐
ternative to his Sixth Amendment argument. Hearing his appeal on that
ground would therefore implicate the same jurisdictional obstacles out‐
lined in MacDonald.
10 No. 14‐1103
The district court’s denial of Kashamu’s motion therefore 1)
conclusively determined that he would have to stand trial, 2)
stood completely separate from the merits of that trial, and
3) would have been effectively unreviewable if Kashamu
had been required to wait until trial to appeal it.
The same analysis applies to this case. Bokhari essentially
seeks relief from three consequences of his indictment: his
continued inability to travel due to the red notice, the over‐
hanging threat of extradition, and the prospect of the trial
that would inevitably follow. As in Kashamu, he seeks a rem‐
edy on the ground that a foreign court has undermined the
legitimacy of his indictment. The district court’s refusal to
dismiss the charges conclusively denies him that relief, and
we need not comment on the merits of his guilt or innocence
to review that decision. Finally, if we wait until after trial to
hear Bokhari’s appeal, his claim to dismiss the indictment
without trial will be moot and unreviewable. The comity
claim is therefore appealable as a collateral order under
Kashamu.
It is true that the district court denied Bokhari’s motion
without prejudice under the fugitive disentitlement doctrine,
but this is analogous to one of those rare instances “where a
dismissal without prejudice is effectively final” because “it is
impossible for the plaintiff to amend the filing to remedy the
problem that prompted the dismissal.” Dolis v. Chambers, 454
F.3d 721, 723 (7th Cir. 2006) (citation and quotation marks
omitted). By denying the motion without prejudice, the dis‐
trict court did keep open the possibility that Bokhari could
return, or be extradited, to the United States and then have
his motion to dismiss the indictment heard in the district
court. But to do so, Bokhari would first have to give up his
No. 14‐1103 11
right not to return (or to resist extradition) to this country.
See Kashamu, 656 F.3d at 682–83 (dismissal of the indictment
“protects [Kashamu] from extradition, the immediate sequel
to which would be a criminal trial.”). Moreover, if Bokhari
ever does set foot in this country, either through extradition
or free will, his comity argument would essentially vanish. It
would certainly not offend Pakistan for the United States to
try one of its own citizens within its own territory, for al‐
leged crimes committed in this country. Bokhari would
therefore be unable to use the comity argument to avoid tri‐
al. As in Kashamu, we are confident that “[i]f the United
States succeeds in extraditing [Bokhari] it will put him on
trial” regardless of any comity argument he makes. Id. at
682. The district court’s decision therefore conclusively de‐
termined that issue, subject to our review.
This is a rare case. Most fugitive disentitlement decisions
handed down by district courts involve defendants who
have since been caught and returned; these rulings are typi‐
cally entered with prejudice.4 See, e.g., United States v. Mor‐
gan, 254 F.3d 424, 426 (2d Cir. 2001). But we are persuaded
on these facts that Bokhari must be able to appeal the district
court’s decision to invoke the doctrine, because otherwise an
erroneous application would be reviewable only through
use of an extraordinary writ. In the case of In re Hijazi, 589
F.3d 401 (7th Cir. 2009), the district court held the defend‐
4 Originally, Kashamu was an exception. The district court initially dis‐
missed the defendant’s motion without prejudice pursuant to the fugi‐
tive disentitlement doctrine, United States v. Kashamu, 656 F. Supp. 2d
863, 868 (N.D. Ill. 2009), but then reconsidered its decision and denied
the motion on the merits, No. 94‐CR‐172, 2010 WL 2836727 (N.D. Ill. July
15, 2010).
12 No. 14‐1103
ant’s motion in abeyance pending his arraignment, thereby
requiring the defendant to seek mandamus. We think it is
unnecessary to resort to that writ to obtain this court’s re‐
view of a decision that is, for all intents and purposes, final.
The government responds that this case is distinguisha‐
ble from Kashamu because Kashamu argued that the foreign
court decision had preclusive effect on the American courts,
whereas Bokhari merely asks this court to respect the Paki‐
stani magistrate’s judgment out of a concern for comity. But
the Kashamu court decided it had jurisdiction before deter‐
mining whether the English magistrate’s decision had any
preclusive effect. 656 F.3d at 683 (“So we have appellate ju‐
risdiction and turn to the question whether it is true as the
government argues that a ruling rejecting a request for ex‐
tradition can never have collateral estoppel effect.”). Indeed,
the court found in that case that the extradition ruling lacked
collateral estoppel effect, but it still retained jurisdiction. As
far as jurisdiction was concerned, “[a]ll that matters is that if
[Kashamu’s] defense of collateral estoppel is sound, it …
protects him from extradition, the immediate sequel to
which would be a criminal trial.” Id. at 682–83. Likewise, if
Bokhari’s comity claim is sound, he will be able to avoid trial
because the indictment would be dismissed. The possibility
that Bokhari’s claim may be less sound than Kashamu’s is no
bar to our jurisdiction. We therefore exercise jurisdiction
over this portion of Bokhari’s appeal.5
5 At oral argument, Bokhari contended that this court could hear his en‐
tire appeal—involving both the comity and speedy trial claims—if we
had jurisdiction over either issue. He suggested that he is appealing a
single order denying his motion, and that he is therefore entitled to ap‐
peal the whole order if he can appeal any of it. But there is no good rea‐
No. 14‐1103 13
3. andamus
M
One final jurisdictional issue remains. Bokhari perfuncto‐
rily requests that, in the event this court finds appellate ju‐
risdiction lacking as to either claim, we treat his appeal as a
petition for a writ of mandamus pursuant to the All Writs
Act. See 28 U.S.C. § 1651. We have already decided to exer‐
cise jurisdiction over the comity claim, so a writ of manda‐
mus is unnecessary for that purpose. As to the Sixth
Amendment speedy trial claim, MacDonald bars us from ex‐
ercising mandamus jurisdiction, for the same reasons we
have already discussed. The Supreme Court has instructed
that Sixth Amendment speedy trial claims are best left until
after trial. MacDonald, 435 U.S. at 858. As such, Bokhari can‐
not demonstrate that he has a “clear and indisputable” right
to call upon our mandamus jurisdiction so that we may re‐
view the pretrial denial of his claim. See Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380–81(2004). And in light of his post‐
trial appeal option, Bokhari also cannot establish that he
lacks adequate alternative means of obtaining relief, or that
the circumstances of his case justify the invocation of the
“extraordinary remedy” of mandamus. Id.
son why the manner in which the district court organizes its orders
should affect this court’s jurisdiction. The speedy trial and comity claims
are distinct, and we do not consider them to be the type of “inextricably
intertwined” issues that could trigger the “narrow doctrine” of pendent
appellate jurisdiction. Abelesz v. Erste Grp. Bank AG, 695 F.3d 655, 660 (7th
Cir. 2012).
14 No. 14‐1103
B. The Fugitive Disentitlement Doctrine
We now arrive at the district court’s basis for denying
Bokhari’s motion to dismiss the indictment. The court held
that Bokhari was a fugitive, and that his refusal to submit to
the jurisdiction of the district court “disentitles [him] to call
upon the resources of the Court for determination of his
claims.” Molinaro, 396 U.S. at 366. We have recognized that
the doctrine is a “discretionary device.” Gutierrez‐Almazan v.
Gonzales, 453 F.3d 956, 957 (7th Cir. 2006). The Supreme
Court has indicated that, when a fugitive flees while district
court proceedings are pending, “it is the District Court that
has the authority to defend its own dignity, by sanctioning
an act of defiance that occurred solely within its domain.”
Ortega‐Rodriguez v. United States, 507 U.S. 234, 246 (1993).
The government therefore urges us to adopt an abuse of dis‐
cretion standard in judging whether the district court
properly applied the doctrine. See Morgan, 254 F.3d at 426–27
(finding no abuse of discretion).
What complicates this issue, however, and what con‐
vinced the magistrate judge to recommend against the dis‐
trict court’s invocation of the doctrine, is the question of
whether Bokhari meets the legal definition of a fugitive. Bo‐
khari argues that he is not a fugitive because he left the
United States a few years before he was indicted. He analo‐
gizes his case to In re Hijazi, 589 F.3d at 412–14, where the
defendant had made only one unrelated visit to the United
States. In that case we held that the fugitive disentitlement
doctrine did not apply. Id.
The government persuasively responds that Bokhari had
lived in the United States for over a decade before leaving
for Pakistan, possibly in anticipation of an indictment. Un‐
No. 14‐1103 15
like Hijazi, whose prosecution posed significant extraterrito‐
riality concerns, Bokhari should have understood that, as a
citizen of the United States who had lived in this country for
many years, he had an obligation to return to stand trial.
And the United States cites authority for the proposition
that, in the context of a speedy trial claim, “[a] person can be
said to be a fugitive when, while abroad, they learn that they
are under indictment and make no effort to return to the
United States to face charges.” United States v. Blanco, 861
F.2d 773, 779 (2d Cir. 1988). For statute of limitations pur‐
poses, this court has held that a person becomes a fugitive if
he flees the jurisdiction with the intent of avoiding arrest or
prosecution. United States v. Marshall, 856 F.2d 896 (7th Cir.
1988). And the term “fugitive” in federal extradition statutes
“has been held consistently to require only proof of absence
from the indicting jurisdiction, regardless of the defendantʹs
intent.” Id. at 898.
Nevertheless, we elect to reach the merits of Bokhari’s
comity claim, and will not opine on the fugitive disentitle‐
ment issue. Identifying fugitives for purposes of the disenti‐
tlement doctrine can present complicated legal and factual
questions. As the United States has explained, the term “fu‐
gitive” may take on subtly different meanings as it is used in
a variety of legal contexts. Reasonable minds can disagree,
and have disagreed, about how the term applies in the case
at hand. Instead of deciding that contested issue, we will fol‐
low the example set by the Second Circuit in United States v.
Baccollo, 725 F.2d 170, 172 (2d Cir. 1983), in which that court
declined to reject an appeal pursuant to the disentitlement
doctrine and instead reached the merits because “the appeal
is so plainly frivolous that we prefer to dispose of the case
16 No. 14‐1103
on that ground.”6 Likewise, we “see no reason to risk the
possibility of error” by parsing out Bokhari’s intent in leav‐
ing the jurisdiction, or the legitimacy of his attempts to stay
there given the United States’ failure to extradite him. Id.; see
Dye v. United States, 360 F.3d 744, 750 (7th Cir. 2004) (This
court may “affirm on any basis identified in the record that
was argued below.”).7 We therefore proceed to the merits.
C. Merits of the Comity Claim
Bokhari argues that the district court should have dis‐
missed the indictment out of concern for international comi‐
ty. He compares the denial of extradition to a finding of no
probable cause under Federal Rule of Criminal Procedure
5.1. And he cites Kashamu for the proposition that a denial of
extradition “is like a magistrate’s ruling that there isn’t
probable cause to hold a person.” 656 F.3d at 685.
6 Granted, in Baccollo the Second Circuit was deciding whether to invoke
the disentitlement doctrine itself, not reviewing a district court’s use of it.
Nevertheless, we find that the discretionary nature of the doctrine per‐
mits us to avoid an examination of the term “fugitive,” as applied to this
case.
7 To be clear, in reaching the merits, we do not in any way suggest that
the district court did err in finding that Bokhari was a fugitive, or that it
abused its discretion in applying the doctrine to him. Nor do we opine
on what the appropriate standard of review of that aspect of the district
court’s decision would be. We instead rely on its observation that “[t]he
fugitive disentitlement doctrine stands for the proposition that those
who flee from judicial process may not benefit from it.” United States v.
Bokhari, No. 04‐CR‐56, ‐‐‐ F. Supp. 2d ‐‐‐ 2014 WL 37349, at *1 (E.D. Wis.
Jan. 6, 2014). As we will see, Bokhari will receive no benefit from filing
his motion to dismiss the indictment.
No. 14‐1103 17
This claim has no merit. The problem with Bokhari’s ar‐
gument is that Kashamu does not support his cause; in fact, it
dooms it. For although the court in that case did liken a de‐
nial of extradition to a probable cause determination, and
although it did note that “[c]omity is a doctrine of deference
based on respect for the judicial decisions of foreign sover‐
eigns,” id. at 683, Kashamu’s attempts to dismiss the indict‐
ment against him failed. The fatal flaw in his case, as in this
one, was a lack of preclusive effect. Like an initial probable
cause hearing, a denial of extradition does not prevent the
government from demonstrating probable cause under a dif‐
ferent record in a different proceeding. Id. at 687–88; see Fed.
R. Crim. P. 5.1(f) (a magistrate judge’s finding of no probable
cause “does not preclude the government from later prose‐
cuting the defendant for the same offense.”). And the United
States did just that by indicting Bokhari. The fact that the
Pakistani magistrate’s denial of extradition came after the
indictment in no way undermines the grand jury’s finding
that there was sufficient evidence to go to trial. “The grand
jury gets to say—without any review, oversight, or second‐
guessing—whether probable cause exists to think that a per‐
son committed a crime.” Kaley v. United States, 134 S. Ct.
1090, 1098 (2014) (discussing “the inviolable grand jury find‐
ing” of probable cause). Rule 5.1(a) of the Federal Rules of
Criminal Procedure underscores that point: a “magistrate
judge must conduct a preliminary [probable cause] hearing
unless … the defendant is indicted.” Because Bokhari was
already indicted, no additional probable cause hearing was
necessary, and the results of such a later hearing cannot un‐
do the grand jury’s work.
Bokhari does not even attempt to argue that the Pakistani
magistrate’s ruling had preclusive effect under Pakistani law
18 No. 14‐1103
(or under United States law, if one accepts Bokhari’s analogy
to a pretrial finding of no probable cause). Indeed, the Paki‐
stani magistrate ruled only that the United States must “fur‐
ther consolidate and substantiate its case” against Bokhari.
This statement strongly indicates that the magistrate did not
consider this ruling to be the final word in the extradition
proceeding. Bokhari is therefore essentially asking that this
court “give preclusive effect to the foreign court’s finding as
a matter of comity” with Pakistan, Kashamu, 656 F.3d at 683,
even though the finding is not preclusive on its own terms.
That makes no sense. We therefore affirm the district court’s
denial of Bokhari’s motion.
III Conclusion
Bokhari’s appeal regarding the speedy trial claim is
DISMISSED for lack of jurisdiction. The district court’s decision
is otherwise AFFIRMED.