(CN) — Prosecutors are urging a federal judge to preserve the fugitive status of Venezuelan President Nicolas Maduro's associate Alex Saab in hopes of completing his extradition from Africa on a money-laundering charge.
Saab, a wealthy Venezuelan businessman, was detained in the West African nation of Cape Verde in June 2020 on an extradition request from the U.S. Department of Justice.
Stateside, he is charged with carrying out a scheme in which he and his associates would allegedly submit fraudulent invoices for supplies related to a low-income housing construction contract with the Venezuelan government. Federal prosecutors claim the supplies were never delivered, and that Venezuelan officials were bribed to sign off on the invoices.
Prosecutors say that in connection with the scheme, Saab and his associates "transferred $350 million out of Venezuela, through the United States, to overseas accounts they owned or controlled." To maximize their profits, the defendants "took advantage of Venezuela’s government-controlled exchange rate, under which U.S. dollars could be obtained at a favorable rate," prosecutors allege.
The criminal case is pending in the Southern District of Florida, where a judge on Monday heard arguments on whether Saab’s fugitive status should be revoked.
Saab is asking a judge to let him challenge the indictment remotely, outside of U.S. custody. He is fighting against the so-called "fugitive disentitlement doctrine," which prohibits fugitives from using the court system to challenge charges while on the run.
"Mr. Saab does not live in the United States, never lived in the United States, never at any relevant time travelled to the United States, and does not own property here," his attorney Lindy Keown wrote in a Jan. 21 motion. "Someone who declines to travel here with no reason to travel here (but for the indictment) cannot in any sense be said to have fled the jurisdiction, nor even to have constructively fled by not having 'returned.'" (Parentheses in original.)
Keown claims Saab is entitled to challenge the Florida court's jurisdiction on the grounds that he had diplomatic immunity from the arrest in Cape Verde. At the time of his arrest, Saab was en route to Iran to negotiate the acquisition of humanitarian supplies on behalf of the Venezuelan government, according to his counsel.
Saab purportedly had status as a special envoy of the Venezuelan government since April 2018. After his arrest – and while he remained in the custody of Cape Verde – Maduro apparently granted him a diplomatic title as Venezuela's "alternate permanent representative to the African union."
The Department of Justice maintains that Saab has no immunity from the criminal case because the alleged crimes are not tied to his official duties as a purported diplomat – and because Saab was never registered as a foreign representative with the U.S. Department of State.
The DOJ says Saab is unfairly seeking to have the indictment dismissed "without ever having to step foot into a United States courtroom.” The department filed a responsive pleading, contending that the issue of whether Saab ever lived in the U.S. is "beside the point."
"Saab Moran's argument that he is not a fugitive fails. [He] knows of the federal indictment against him but has refused to surrender himself to the jurisdiction of this court," Assistant U.S. Attorney Kurt K. Lunkenheimer wrote in the Feb. 22 brief.
Saab's attorney Keown countered by citing to the Seventh Circuit's 2009 decision in a case known as In re Hijazi. In that case, the Chicago-based appellate court found that a defendant charged with fraud-related crimes was entitled to have his motion to dismiss heard while he was overseas in Kuwait. Keown tried to draw similarities between Saab and the defendant in that case, arguing that they both had minimal presence in the U.S.
The DOJ says that the 11th Circuit, which has appellate jurisdiction over Florida, appeared to openly reject the legal reasoning in Hijazi when it handed down a decision in U.S. v. Shalhoub. In Shalhoub, a Saudi Arabian defendant accused of parental kidnapping was denied a chance to use his attorney to remotely challenge the charges against him in U.S. The 11th Circuit found that the fugitive disentitlement doctrine applied even though the indictment was filed after the defendant had returned to Saudi Arabia.
As of Monday, Saab remained in the custody of Cape Verde.
A court for the Economic Community of West African States, or ECOWAS, ruled this week that Saab's arrest was unlawful since authorities could not show that the Interpol Red Alert calling for his extradition was issued prior to his detainment. The judge also indicated that the country's warrant process was not followed in connection with the arrest.
Though the ECOWAS panel directed Cape Verde to halt extradition, the country has "publicly repudiated" the court's jurisdiction, according to Keown.
The U.S. case against Saab was filed in July 2019. He is among a host of officials charged in recent years with crimes tied to corruption in the Venezuelan government.
In March 2020, federal prosecutors filed a sprawling set of charging documents claiming Maduro, Venezuelan defense minister Vladimir Padrino Lopez and several other officials conspired with drug traffickers. Venezuelan Supreme Court Justice Maikel Jose Moreno Perez was charged with bribery in exchange for fixing cases.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.