United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Renewed Motion to Dismiss. (Doc.
No. 37). Defendant argues that the Court should dismiss the
pending indictment “on Speedy Trial and statute of
limitations grounds.” (Doc. No. 37 at 42). The Court
determines that neither ground justifies dismissal of the
Khoury is a naturalized citizen of the United States, and a
native of Lebanon. (Doc. No. 1, ¶1). He worked for The
M.W. Kellogg Company (“Kellogg”) in the Middle
East from 1977 through 1988. (Doc. No. 1, ¶1). In 1988,
he switched to working as a consultant for various firms
including Kellogg, and later Kellogg's successor,
Kellogg, Brown & Root, Inc. (“KBR”). (Doc.
No. 1, ¶1). That same year, Mr. Khoury moved his
residence to Cleveland, Ohio. (Doc. No. 1, ¶1). Ohio
remained Mr. Khoury's permanent residence until he
relocated to Lebanon in 2004, around the same time that it
became known that KBR was being investigated for violations
of the Foreign Corrupt Practices Act (“FCPA”).
(Doc. No. 38 at 3-4.) Mr. Khoury has not left Lebanon since,
with one exception: a 2006 trip to the U.S. to speak with
prosecutors. (Doc. No. 37 at 4-5, 38).
September 2008, Mr. Albert Jackson Stanley, the former CEO of
KBR, pleaded guilty to one count of conspiracy to violate the
FCPA and one count of conspiracy to commit mail and wire
fraud in connection with “kickbacks” allegedly
paid to Mr. Stanley by an unindicted consultant. United
States v. Albert J. Stanley, No. 4:08-cr-0597 (S.D. Tex.
2008) (Ellison, J.) (Doc. No. 9, ¶ 22). He was
subsequently sentenced to 30 months imprisonment and ordered
to pay $10.8 million in restitution. Stanley, No.
4:08-cr-0597 (Dkt. Entry February 23, 2012). Although Mr.
Khoury was not identified by name in the indictment, he
claims that the personal details given during the proceedings
made it obvious to him and others in his industry that he was
the consultant to whom the government was referring. (Doc.
No. 37 at 18-19). When asked by Mr. Khoury's attorney,
the government refused to confirm or deny whether an
indictment had been or would be filed against him. (Doc. No.
11 at 2).
November 24, 2008, a grand jury returned an indictment
charging Mr. Khoury with conspiring to commit mail and wire
fraud. (Doc. No. 1, ¶¶ 2-3, 5-7). The indictment
alleged that Mr. Khoury paid approximately $11 million in
kickbacks to Mr. Stanley in exchange for providing lucrative
consulting fees to Mr. Khoury's company. (Doc. No. 1,
¶¶ 2-3, 5-7). The indictment was placed under seal
when it was returned. (Doc. No. 5).
January 2009, the government entered Mr. Khoury's arrest
warrant into the National Crime Information Center
(“NCIC”) database to alert border officials in
the event Mr. Khoury attempted to re-enter the United States.
(Doc. No. 38-1, ¶4). In May 2009, the government issued
an INTERPOL Wanted Person Diffusion to twelve countries (not
including Lebanon) through the U.S. National Central Bureau
for Interpol. (Doc. No. 37-2 at 4). The government later
issued another Diffusion to the twelve countries in 2015, and
an INTERPOL Red Notice in 2019. (Doc. No. 38 at 15-16.) An
Interpol Red Notice alerts foreign governments to the
issuance of a U.S. arrest warrant, while a Diffusion Notice,
which is less formal than a Red Notice, may be sent to select
countries to obtain assistance in locating, arresting and
detaining a wanted subject. About Notices, INTERPOL,
(last visited Sept. 25, 2019).
December 2014, Mr. Khoury moved to unseal and dismiss the
indictment he suspected was pending against him, but the
motions were denied. (Doc. No. 11 at 10); see also United
States v. Khoury, 4:14-mc-2884 (Dec. 12, 2014). Mr.
Khoury next brought a civil suit challenging his public
identification as an unindicted co-conspirator in federal
court in the Stanley case. See Doe v. United
States, 4:15-MC-2414 (Aug. 20, 2015). The Fifth Circuit
in that case held that the civil suit was time-barred.
Doe v. United States, 853 F.3d 792 (5th Cir. 2017).
In 2017, Mr. Khoury brought another action to unseal and
dismiss the indictment that he believed to be pending against
him. United States v. Khoury, 4:17-mc-2553. This
Court granted the motion to unseal the indictment on July 9,
2018. Khoury, 4:17-mc-2553 (Doc. No. 25). At that
point, Mr. Khoury refiled his motion to dismiss in his
criminal case. United States v. Khoury, 4:08-cr-0763
(Doc. No. 11). In November 2018, the Court declined to apply
the fugitive disentitlement doctrine (Dkt. Entry Nov. 29,
2018), which is an equitable doctrine allowing a court
discretion to refuse to consider the merits of a
defendant's motion or appeal when the defendant is a
fugitive from justice. Bagwell v. Dretke, 376 F.3d
408, 410 (5th Cir. 2004). In March 2019, the Court ordered
that the government provide Mr. Khoury with further evidence
about its attempts to bring him to trial. (Doc. No. 26). Mr.
Khoury's Renewed Motion to Dismiss (Doc. No. 37), now
before the court, incorporates that evidence. After a hearing
on the Renewed Motion to Dismiss, the Court requested and
received supplemental briefing on the availability of
extradition of dual nationals from Lebanon. (Doc. Nos. 44,
45, 46). Having considered the parties' briefing, the
evidence, and the applicable law, the Court denies Mr.
Khoury's Renewed Motion to Dismiss. (Doc. No. 37).
Khoury argues that the Court should dismiss the inditement
against him on two grounds. First, he argues that the
decade-long delay in prosecution has deprived him of his
Sixth Amendment right to a speedy trial. Second, he argues
that the indictment is time-barred by 18 U.S.C. § 3282.
The Court finds neither argument persuasive.
Sixth Amendment guarantees that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial . . . .” U.S. Const. Amend. VI.
Excessive delay in prosecuting a defendant after he is
indicted or arrested violates this Sixth Amendment right.
Barker v. Wingo, 407 U.S. 514 (1972); Doggett v.
United States, 505 U.S. 647 (1992). Mr. Khoury argues
that the roughly decade-long delay in prosecuting his case is
excessive and that his motion to dismiss should therefore be
evaluate speedy trial claims by analyzing the Barker
factors: (1) the length of the delay; (2) whether the delay
is attributable to the government or the defendant; (3)
whether the defendant asserted his right to a speedy trial;
and (4) whether the defendant suffered any prejudice from the
delay. 407 U.S. at 530. None of the factors is “a
necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such
other circumstances as may be relevant.” Id.
factors (1), (3), and (4) favor Mr. Khoury. The government
concedes under factor (1) that “the passage of more
than nine years between the return and unsealing of the
indictment triggers a speedy trial analysis and weighs in
Defendant's favor.” (Doc. No. 38 at 9); see
also United States v. Cardona, 302 F.3d 494, 497 (5th
Cir. 2002) (“Because of the extraordinary delay of over
five years, this factor weighs heavily in Cardona's
favor.”). Factor (3) also weighs in Mr. Khoury's
favor. Mr. Khoury asserted his right to a speedy trial in
December 2014 when he moved both to unseal and dismiss on
speedy trial grounds the indictment that he surmised was
pending against him. (Doc. No. 37 at 8-9). Finally, Mr.
Khoury has made a showing of actual prejudice under factor
(4) because at least a dozen potential defense witnesses have