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United States v. Khoury

United States District Court, S.D. Texas, Houston Division

December 6, 2019




         Before 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 indictment.

         I. Background

         Mr. 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).

         In 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).

         On 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).

         In 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).

         In 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).

         II. Discussion

         Mr. 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.

         A. Speedy Trial

         The 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 granted.

         Courts 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. at 533.

         Barker 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 ...

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