Attorneys for the two Akasha brothers and another defendant are questioning whether a US court has jurisdiction to put them on trial on drug-trafficking charges.
The defence lawyers suggested in a New York courtroom on Friday that the US may not have the right to prosecute the three men because they were summarily expelled from Kenya a year ago rather than being formally extradited.
“I don't think citizens of Kenya can be (lawfully) expelled,” Christopher Cassar, an attorney for Baktash Akasha, told the US federal judge hearing the case.
Mr Cassar contended following a court hearing last month that his client had been “abducted” from Kenya. He said the US thus has no standing to conduct a trial that is now tentatively scheduled to begin in October.
Baktash and Ibrahim Akasha, along with Pakistani national Gulam Hussein and Indian national Vijaygiri Goswami, have been charged by US prosecutors with conspiring to smuggle 98 kilogrammes of heroin into the United States from Kenya.
The four suspects could be sentenced to life in prison in the US if convicted on those charges.
Mr Cassar and Dawn Marcella Cardi, an attorney for Ibrahim Akasha, said in court on Friday that they want US prosecutors to produce an official Kenyan government order for the defendants' expulsion.
US government attorneys had previously indicated that such a document does exist, Mr Cassar and Ms Cardi said in an interview following Friday's court hearing.
But prosecutor Patrick Egan said on Friday he does not know whether a Kenyan expulsion order had been issued prior to the four men's deportation to the US in January of last year.
Mr Egan did acknowledge that the defendants had been removed from Kenya even though a Kenyan court had not ruled on a pending US request for their extradition.
“We have represented in past that defendants were expelled,” Mr Egan told the court. “That's not a mystery.”
He added: “Whether Kenya can or cannot expel its citizens doesn't have bearing on this case.”
Presiding Judge Victor Marrero ruled that the prosecution and the defence should submit arguments pertaining to the possible expulsion order and, if it exists, whether the defendants should have access to it.
The judge is likely to rule on this issue in April.
US EXTRADITION REQUEST
The Akasha brothers, along with Mr Hussein and Mr Goswami, were seized by Kenyan authorities in January of last year prior to a scheduled court hearing on the US extradition request. US Drug Enforcement Agency officials then took custody of the four accused men and flew with them on a charter flight to New York.
They have been held in detention centres in New York for the past 13 months.
Additional charges of bribery and brandishing of firearms in Kenya were filed by US prosecutors in December. The Akashas and Mr Hussein pleaded not guilty to those charges last month.
Mr Goswami was not present for the court session in January. Mr Cassar, the attorney for Baktash Akasha, said during that hearing that Mr Goswami has agreed to cooperate with US prosecutors — presumably in exchange for a guilty plea and a lesser sentence.
The lawyer representing the US government declined on that occasion to confirm or deny whether Mr Goswami had entered into a plea deal with prosecutors.
Ms Cardi, the attorney for Ibrahim Akasha, said on Friday that defence lawyers will be asking prosecutors to reveal the names and titles of those Kenyans who were allegedly bribed in connection with this case.
She added that defence attorneys must be given the opportunity to speak with those Kenyans as well as with any witnesses US prosecutors intend to call in regard to the bribery and firearms allegations.
Mr Hussein, a 62-year-old said in court papers to go under the alias “Old Man,” appeared haggard as he was led into the courtroom in shackles on Friday.
The Akasha brothers, also bound in shackles and wearing prison garb, seemed in good spirits. Baktash, 41, is portly and balding; his 29-year-old brother Ibrahim is shorter and more trim.