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                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-10533
                               ________________________

                        D.C. Docket No. 1:98-cr-00460-DMM-1



UNITED STATES OF AMERICA,

                                                                         Plaintiff - Appellee,


                                            versus


KHALID A. SHALHOUB,

                                                                      Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                       (April 28, 2017)

Before WILLIAM PRYOR and MARTIN, Circuit Judges, and DUFFEY, * District
Judge.

WILLIAM PRYOR, Circuit Judge:

*
Honorable William S. Duffey, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
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      This appeal presents the questions whether the denial of a motion for special

appearance of counsel to seek the dismissal of an indictment on the ground that the

defendant is a fugitive from justice is an immediately appealable collateral order

and, if not, whether we should issue a writ of mandamus to compel a ruling on the

motion to dismiss the indictment without requiring the defendant to appear. In

1997, a grand jury indicted Khalid Shalhoub on one count of international parental

kidnapping, 18 U.S.C. § 1204. Shalhoub lives in Saudi Arabia and has never been

arrested. In 2015, he moved to have his attorneys specially appear to seek dismissal

of the indictment, which the district court denied on the ground that the fugitive

disentitlement doctrine prohibits Shalhoub from calling upon the resources of the

court without submitting to its jurisdiction. Shalhoub appealed and, alternatively,

petitioned for a writ of mandamus. We dismiss his interlocutory appeal for lack of

jurisdiction because the order denying his motion is not appealable under the

collateral order doctrine. We also deny his petition for a writ of mandamus because

Shalhoub has an adequate means to obtain relief—appearance in the district

court—and cannot establish that his right to mandamus is clear and indisputable.

                               I.   BACKGROUND

      Khalid Shalhoub, a citizen and resident of Saudi Arabia, married Miriam

Hernandez in Miami in 1985. They divorced four years later. A Florida court

granted Shalhoub and Hernandez “full shared parental responsibility” over their


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only child, Yasmeen, and the court designated Hernandez “as the primary

residential parent.”

      In 1997, a grand jury in the Southern District of Florida indicted Shalhoub

on one count of parental kidnapping in violation of the International Parental

Kidnapping Crime Act, which makes it a crime to “remove[] a child from the

United States . . . with intent to obstruct the lawful exercise of parental rights.” 18

U.S.C. § 1204(a). The indictment alleged that Shalhoub removed Yasmeen from

the United States to Saudi Arabia “with [the] intent to obstruct the lawful exercise

of the parental rights of Miriam Hernandez.” Although a magistrate judge issued a

warrant for Shalhoub’s arrest the day he was indicted, Shalhoub has not been

arrested, and the district court listed him a “fugitive from justice.”

      In 2015, Shalhoub moved to allow his counsel to appear specially and seek

dismissal of the indictment. Shalhoub argued that the indictment lacked factual

specificity; that the International Parental Kidnapping Crime Act contravenes the

laws of Saudi Arabia where the alleged kidnapping occurred; that the Southern

District of Florida is an improper venue; that comity cautions against prosecuting

conduct that occurred in another country; and that the prosecution violates

Shalhoub’s right to a speedy trial. He also argued that the district court should not

invoke the doctrine that “disentitles [a fugitive] to call upon the resources of [a

c]ourt for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 366


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(1970). Shalhoub asserted that he is not a fugitive from justice because he was

living in Saudi Arabia when he was indicted and did not flee the United States. He

also argued that application of the fugitive disentitlement doctrine violates his right

to due process because the district court labelled him a “fugitive” without an

opportunity to be heard.

      The district court denied Shalhoub’s motion without prejudice to his right to

appear and seek dismissal of his indictment. The district court explained that the

fugitive disentitlement doctrine barred Shalhoub’s motion because, although

Shalhoub was living abroad when indicted, Shalhoub “constructively fle[d] by not

deciding to return” to the United States. United States v. Barnette, 129 F.3d 1179,

1184 (11th Cir. 1997). The district court also ruled that Shalhoub’s right to due

process had not been violated and declined to exercise its discretion to circumvent

application of the doctrine. Shalhoub appealed and, in the alternative, petitioned

for a writ of mandamus.

                         II.   STANDARDS OF REVIEW

      We review de novo whether we have jurisdiction to decide an interlocutory

appeal. Doe No. 1 v. United States, 749 F.3d 999, 1003 (11th Cir. 2014). “Because

a writ of mandamus is an action against the district court judge, the remedy is a

drastic one that only exceptional circumstances, amounting to a judicial usurpation

of power, will justify.” In re Coffman, 766 F.3d 1246, 1248 (11th Cir. 2014)


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(citation and internal quotation marks omitted) (alteration adopted). “We will issue

a writ only if a petitioner establishes that he has no other adequate means to attain

the relief he desires and that his right to the issuance of the writ is clear and

indisputable.” Id. (internal quotation marks omitted) (alteration adopted). “We also

must be satisfied that the writ is appropriate under the circumstances.” Id. (citation

and internal quotation marks omitted).

                                III.    DISCUSSION

      The fugitive disentitlement doctrine permits a district court to “sanction or

enter judgment against parties on the basis of their fugitive status.” Magluta v.

Samples, 162 F.3d 662, 664 (11th Cir. 1998). This doctrine accounts for “the

difficulty of enforcement against one not willing to subject himself to the court’s

authority, the inequity of allowing [a] ‘fugitive’ to use the resources of the courts

only if the outcome is an aid to him,” and “the need to avoid prejudice to the

nonfugitive party.” Barnette, 129 F.3d at 1183. It also “discourage[s] . . . flights

from justice,” id., and protects the dignity of the courts, Ortega-Rodriguez v.

United States, 507 U.S. 234, 241–42, 246 (1993).

      Shalhoub argues that application of the doctrine to his motion was error. He

requests that we reverse and remand for the district court to rule on the merits of

his motion. As an alternative to appellate review, Shalhoub petitions for a writ of

mandamus to compel the district court to rule on the merits of his motion.


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      We divide our discussion in two parts. First, we explain that we lack

appellate jurisdiction because the order denying Shalhoub’s motion is not

immediately appealable under either the collateral order doctrine or the doctrine of

marginal finality. Second, we deny Shalhoub’s petition for a writ of mandamus

because he has an adequate means to obtain relief—appearance in the district

court—and his right to the writ is not clear and indisputable.

            A. We Lack Appellate Jurisdiction over Shalhoub’s Appeal.

      Courts of appeals have jurisdiction over “final decisions of the district courts

of the United States.” 28 U.S.C. § 1291. The “final judgment rule” prohibits

appellate review of a pretrial order in a criminal case “until conviction and

imposition of sentence.” Flanagan v. United States, 465 U.S. 259, 263 (1984). We

apply the final judgment rule with “utmost strictness in criminal cases,” id. at 265,

unless the challenged order falls within the collateral order doctrine, which permits

appellate review of an interlocutory order that (1) “conclusively determine[s] the

disputed question,” (2) “resolve[s] an important issue completely separate from the

merits of the action,” and (3) is “effectively unreviewable on appeal from a final

judgment.” Id. (internal quotation marks and citation omitted).

      Although neither convicted nor sentenced, Shalhoub argues that we have

jurisdiction under the collateral order doctrine. We disagree. We cannot expand the




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collateral order doctrine to permit our intermediate review of the denial of

Shalhoub’s motion.

      The only kinds of pretrial orders in criminal cases that the Supreme Court

has stated are important enough to fall within this “narrow” exception to the final

judgment rule implicate “an asserted right the legal and practical value of which

would be destroyed if it were not vindicated before trial.” Id. at 265–67 (internal

quotation marks and citation omitted). For example, a defendant may immediately

appeal the denial of a motion to dismiss an indictment, which contests the legality

of prosecution on the basis of double jeopardy, because the defendant challenges

“the very authority of the Government to hale him into court to face trial on the

charge against him.” Abney v. United States, 431 U.S. 651, 659 (1977). Likewise,

the denial of a motion to dismiss an indictment on the basis that the Speech or

Debate clause of the Constitution, U.S. Const. Art. I, § 6, cl. 1, bars the prosecution

is immediately appealable because the motion asserts a right not to be “questioned

for acts done in either House [of Congress].” Helstoski v. Meanor, 442 U.S. 500,

506 (1979) (citation omitted). Both double jeopardy and the Speech or Debate

clause implicate “a right not to be tried.” Flanagan, 465 U.S. at 267. The only

other order that the Supreme Court has said is immediately appealable under the

collateral order doctrine is an order denying a motion to reduce excessive bail,

Stack v. Boyle, 342 U.S. 1, 6 (1951), because “[t]he issue is finally resolved and is


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independent of the issues to be tried, and the order becomes moot if review awaits

conviction and sentence.” Flanagan, 465 U.S. at 266.

      The Supreme Court has refused to apply the collateral order doctrine to

review the denial of motions alleging violations of grand jury secrecy, Midland

Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989), and the right to a speedy

trial, United States v. MacDonald, 435 U.S. 850, 857 (1978), vindictive

prosecution, United States v. Hollywood Motor Car Co., 458 U.S. 263, 264 (1982),

and insufficient evidence, Abney, 431 U.S. at 663. Although important, these

matters involve rights that do not “rest[] upon an explicit statutory or constitutional

guarantee that trial will not occur,” Midland Asphalt, 489 U.S. at 801, and they are

in “no danger of becoming moot upon conviction and sentence.” Flanagan, 465

U.S. at 266. In other words, absent the assertion of a right not to be tried or the

assertion of a right akin to the right against excessive bail, a defendant must accept

the burdens of trial and sentencing before he obtains appellate review of an adverse

ruling. See Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (“[L]itigants

must abide by the district court’s judgments, and suffer the concomitant burden of

a trial, until the end of proceedings before gaining appellate review.”).

      Shalhoub’s appeal does not fall within the limited scope of the collateral

order doctrine. The denial of Shalhoub’s motion for counsel to appear specially

implicates neither a “right not to be tried,” Flanagan, 465 U.S. at 266–67, nor a


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right like that against excessive bail. Although Shalhoub asserts that the denial of

his motion implicates a panoply of rights—due process, the presumption against

extraterritorial application of American law, proper venue, and factual sufficiency

in an indictment—none of them “rest[] upon an explicit statutory or constitutional

guarantee that trial will not occur.” Midland Asphalt, 489 U.S. at 801. And the

weight of these rights cannot overcome the policy against the exercise of

jurisdiction over intermediate orders. Cf. Lauro Lines S.R.L. v. Chasser, 490 U.S.

495, 503 (1989) (Scalia, J., concurring) (explaining that “jurisdictional limitations

established by Congress or by international treaty” are “not sufficiently important

to overcome the policies militating against interlocutory appeals.”).

      The denial of Shalhoub’s motion is not akin to an “order fixing bail,” which

is “entirely independent of the issues to be tried,” Stack, 342 U.S. at 12 (Jackson,

J., concurring). The right against excessive bail is a constitutional right, U.S.

Const. Amend. VIII, that protects a defendant against bail set higher than

reasonably necessary to ensure the defendant’s presence at trial, Stack, 342 U.S. at

5 (majority opinion). By contrast, so long as he refuses to appear in court,

Shalhoub has no right to avoid being labelled a fugitive.

      Shalhoub counters that a district court must satisfy the constitutional

guarantee of due process before it labels him a fugitive, but we disagree. The

constitutional guarantee of due process did not entitle Shalhoub to any procedural


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protections before the district court labelled him a fugitive. See Allen v. Georgia,

166 U.S. 138, 141 (1897) (upholding against due process attack a dismissal of the

appeal of an escaped prisoner on fugitive disentitlement grounds); Clark v. James,

794 F.2d 595, 598 (11th Cir. 1986) (“[T]here is no constitutional right to notice

and hearing prior to dismissal, even when the escapee is captured before

dismissal.”); Joensen v. Wainwright, 615 F.2d 1077, 1079 (5th Cir. 1980) (“[A]n

escapee . . . who was at large and unavailable for hearing or receipt of notice at the

time of dismissal, . . . has no constitutional right to notice and hearing.”). And even

if we were to accept Shalhoub’s argument that labelling him a fugitive implicates a

“constitutionally-protected interest in a person’s good name,” “[w]here a person’s

good name . . . is at stake,” due process requires only notice and an opportunity to

be heard, Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), which the district

court offered Shalhoub and continues to offer him. A fugitive has no more of a

freestanding right not to be labelled a fugitive, than a criminal defendant has a

freestanding right not to be labelled a defendant. Although the determination that

Shalhoub is a fugitive is likely unreviewable after final judgment, Shalhoub enjoys

a right to appear in court, to defend himself against the indictment, and to clear his

name if he prevails.

       Shalhoub urges this Court to follow a recent decision of the Seventh Circuit

that held that the denial of a motion to dismiss an indictment was an immediately


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appealable order, United States v. Bokhari, 757 F.3d 664 (7th Cir. 2014), but that

decision is distinguishable. The Seventh Circuit reasoned that the motion

implicated a right not to be tried because a foreign court had refused to extradite

the defendant. Id. at 669–70. Bokhari, a dual citizen of Pakistan and the United

States, was indicted for fraud. Id. at 666. Because Bokhari lived in Pakistan at the

time of the indictment, the United States sought extradition, but a Pakistani court

denied the request. Id. Bokhari then filed a motion to dismiss the indictment, which

the district court denied. Id. at 667. The Seventh Circuit held that the order was

immediately appealable because the district court conclusively determined whether

to defer to the Pakistani court, Bokhari suffered prejudice as a result of the

indictment, and Bokhari asserted a right not to be tried on the ground that

international comity required deference to the decision of the Pakistani court. Id. at

669–70. The Seventh Circuit emphasized that “[t]his is a rare case.” Id. at 670.

“[I]f Bokhari ever does set foot in this country, either through extradition or free

will, his comity argument would essentially vanish.” Id. Unlike Bokhari, Shalhoub

asserts no alleged right not to be tried. He instead argues that being labelled a

fugitive implicates other rights—for example, due process, the presumption against

the extraterritorial application of American law, and the right to a speedy trial—the

denial of which is insufficient to support our intermediate review. Will v. Hallock,

546 U.S. 345, 352 (2006) (“The importance of the right asserted [is] a significant


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part of [the] collateral order doctrine.” (citation and internal quotation marks

omitted)). And we need not decide whether we agree with the Seventh Circuit that

the decision of a foreign court not to extradite a defendant implicates a right not to

be tried.

       Shalhoub argues that we can exercise jurisdiction over his appeal under an

alternative doctrine, marginal finality, but we disagree. An order that presents a

question of “marginal” finality “fundamental to the further conduct of the case” is

immediately appealable, Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 154

(1964), but the Supreme Court has since limited that doctrine to “the unique facts

of [Gillespie],” Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n.30 (1978),

which are distinguishable from this appeal, see Gillespie, 379 U.S. at 149–51

(addressing whether the Jones Act provided the exclusive remedy for the alleged

wrongful death of a deceased seaman). And we have explained that it is

inconsistent for a litigant to assert that we have appellate jurisdiction under the

collateral order doctrine, “which requires the issue resolved to be completely

separate from the merits,” and the marginal finality doctrine, “which addresses the

review of intermediate issues ‘fundamental to the further conduct of the case.’” See

Atl. Fed. Sav. & Loan Ass’n of Ft. Lauderdale v. Blythe Eastman Paine Webber,

Inc., 890 F.2d 371, 377 (11th Cir. 1989) (citation omitted). We decline to exercise

appellate jurisdiction on the basis of marginal finality.


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                 B. We Deny the Petition for a Writ of Mandamus.

      The All Writs Act permits us to issue a writ of mandamus to compel a

district court to perform a particular duty within its jurisdiction. 28 U.S.C.

§ 1651(a); see also Fed. R. App. Proc. 21; Cheney v. U.S. Dist. Court for D.C., 542

U.S. 367, 380 (2004). The writ is a “‘drastic and extraordinary’ remedy,” Cheney,

542 U.S. at 380 (citations omitted), that is available only “to confine an inferior

court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise

its authority when it is its duty to do so,” Allied Chem. Corp. v. Daiflon, Inc., 449

U.S. 33, 35 (1980) (quoting Will v. United States, 389 U.S. 90, 95 (1967)). “[O]nly

exceptional circumstances amounting to a judicial usurpation of power or a clear

abuse of discretion will justify the invocation of this extraordinary remedy.”

Cheney, 542 U.S. at 380 (internal quotation marks and citations omitted).

      A petition must satisfy three conditions before we may grant a writ of

mandamus:

      First, the party seeking issuance of the writ must have no other
      adequate means to attain the relief he desires—a condition designed to
      ensure that the writ will not be used as a substitute for the regular
      appeals process. Second, the petitioner must satisfy the burden of
      showing that his right to issuance of the writ is clear and indisputable.
      Third, even if the first two prerequisites have been met, the issuing
      court, in the exercise of its discretion, must be satisfied that the writ is
      appropriate under the circumstances.




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Id. at 380–81 (citations and internal quotation marks omitted) (alterations adopted).

Shalhoub argues that his petition satisfies all three conditions for a writ of

mandamus. We disagree.

      Shalhoub fails to establish that he has no adequate means to challenge the

indictment. Shalhoub argues that he is under no obligation to travel to the United

States and his indictment will pend indefinitely unless we compel the district court

to rule on his motion. The indictment has been pending against Shalhoub for nearly

twenty years. “At any time during this long interval he had only to show up in . . .

district court” to challenge the indictment. See In re Kashamu, 769 F.3d 490, 493

(7th Cir. 2014). That he does not want to submit himself to the jurisdiction of the

federal courts does not make the legal remedies available to challenge his

indictment inadequate.

      Shalhoub also fails to identify any “clear abuse of discretion” by the district

court. Cheney, 542 U.S. at 380 (citation omitted). Shalhoub argues that he has a

right to the writ because he is not a fugitive and that the district court erred when it

applied the doctrine of “constructive flight” to him, but we have held that a

“defendant need not leave the jurisdiction” for the doctrine of fugitive

disentitlement to apply. Barnette, 129 F.3d at 1184. “[W]hile legally outside the

jurisdiction[, the defendant] may constructively flee by deciding not to return.” Id.

Shalhoub asserts that Barnette is distinguishable because he was in his home


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country when the grand jury returned his indictment unlike the defendant in

Barnette. But whether Shalhoub was in Saudi Arabia when the grand jury indicted

him is beside the point. Like the defendant in Barnette, Shalhoub knew of the

indictment and “refused to surrender himself to th[e] jurisdiction of the court,” id.,

electing instead not to travel outside of Saudi Arabia to avoid apprehension. The

district court did not clearly abuse its discretion when it applied the doctrine of

constructive flight to Shalhoub.

      Nor has Shalhoub established a clear and indisputable right to the writ.

Shalhoub argues that “labeling [him] a ‘fugitive’ without a hearing or evidentiary

showing violates due process, because the ‘fugitive’ label constitutes a

stigmatizing statement.” But, as explained earlier, the constitutional guarantee of

due process did not entitle Shalhoub to any procedural protections before the

district court labelled him a fugitive. See Allen, 166 U.S. at 141; Clark, 794 F.2d at

598; Joensen, 615 F.2d at 1079. A fugitive is someone who has been offered

process and refuses it. Fugitive, Black’s Law Dictionary (10th ed. 2014) (“A

criminal suspect or a witness in a criminal case who flees, evades, or escapes

arrest, prosecution, imprisonment, service of process, or the giving of testimony,

esp. by fleeing the jurisdiction or by hiding.”). The guarantee of due process is not

violated whenever a defendant dislikes the process offered.




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      Shalhoub argues that his right to the writ is clear and indisputable because

the International Parental Kidnapping Crime Act cannot “apply . . .

extraterritorially to conduct that occurred within Saudi Arabia in compliance with

Saudi law,” but we disagree. Although we ordinarily operate under the

presumption that a statute does not apply extraterritorially, United States v. Perez-

Herrera, 610 F.2d 289, 290 (5th Cir. 1980), it makes no sense to say that the

International Parental Kidnapping Crime Act—which makes it a crime to

“remove[] a child from the United States . . . or retain[] a child . . . outside the

United States,” 18 U.S.C. § 1204(a)—does not apply to conduct that occurs in

another country. United States v. MacAllister, 160 F.3d 1304, 1307 (11th Cir.

1998) (“[W]e ask whether the language [of the statute] gives any indication of a

congressional purpose to extend its coverage beyond places over which the United

States has sovereignty or has some measure of legislative control.” (emphasis

added) (citation and internal quotation marks omitted)). The plain text of the Act

extends the force of federal law to conduct that occurs “without or beyond the

limits of” the United States—that is, extraterritorially. Outside, Webster’s New

International Dictionary 1735 (2d ed. 1961).

      Nor does Shalhoub have a clear and indisputable right to mandamus on the

ground that venue is improper in the Southern District of Florida. Venue lies “in

any district in which [an] offense was begun, continued, or completed.” 18 U.S.C.


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§ 3237(a). The indictment contains enough information to suggest that the crime

commenced in the Southern District of Florida where Shalhoub’s ex-wife lived

before their daughter was removed from the United States. And Shalhoub once

resided in the Southern District of Florida. Contra United States v. Clenney, 434

F.3d 78 (5th Cir. 2005) (holding that venue did not lie in the Northern District of

Texas because the defendant had “never set foot in the Northern District”). In any

event, a motion to dismiss an indictment for improper venue is not the kind of

“compelling” question that justifies issuance of the writ. See United States v.

Martin, 620 F.2d 237, 239 (10th Cir. 1980).

      Shalhoub exhorts us to follow In re Hijazi, 589 F.3d 401 (7th Cir. 2009), in

which the court granted a writ of mandamus to a defendant who lived outside of

the United States and sought to dismiss an indictment through a special appearance

of his counsel. Shalhoub argues that his petition is identical to the petition in

Hijazi. Shalhoub argues that, like the petitioner in Hijazi, he is under “no

obligation to travel to the United States,” he has suffered prejudice by not being

able to travel, and his claims could not “be remedied by the regular appeals

process.” Id. at 407. We reject this argument.

      Unlike the petitioner in Hijazi, Shalhoub cites no refusal by the Saudi

Government to extradite him, and he has significant contacts with the United

States. Id. at 407–14. Notwithstanding what the Seventh Circuit has stated on this


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issue, see id. at 407 (explaining that although Hijazi could “show[] up in court” to

challenge the indictment, “Hijazi ha[d] [a] right to stay [in Kuwait], and in that

way, to refuse to cooperate with the U.S. proceeding”), we submit that Shalhoub

has an adequate remedy: appearance in the district court.

      We are not “satisfied that the writ is appropriate under the circumstances.”

Cheney, 542. U.S. at 381. Shalhoub’s petition does not raise the kinds of

significant questions necessary for issuance of the writ. Id. (explaining that

separation of powers is the kind of significant question that the writ could be used

to address). If Shalhoub wants to the challenge the indictment, he need only submit

himself to the jurisdiction of the district court.

                                IV.    CONCLUSION

      We DISMISS Shalhoub’s appeal for lack of appellate jurisdiction, and we

DENY his petition for a writ of mandamus.




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