The case of the day is United States v. Kashamu (7th Cir. 2011). Buruji Kashamu, a Nigerian national, was indicted by a grand jury in the Northern District of Illinois in 1998 for conspiracy to import and distribute heroin. The indictment named him under his own name and under two supposed aliases: “Alaji” and “”Kasmal.” Kashamu’s whereabouts were unknown. His c0-defendants were tried and convicted. Later in 1998, the government found Kashamu living in England, and the government there arrested him at the request of the US. The Justice Department sought his extradition. The extradition proceedings were “incredibly protracted,” lasting until 2003. The English judge refused to extradite him. Kashamu left England and is believed to have returned to Nigeria.
The Proceedings in the High Court
The Seventh Circuit decision gives no details of the High Court proceedings, which are quite interesting. After the metropolitan magistrate ordered him held pending extradition, Kashamu applied for a writ of habeas corpus. R. v. Governor of HM Prison, Brixton, [2000] EWHC 226 (QB). The magistrate had found that there was evidence that a co-conspirator, Fillmore, had identified a photograph of Kashamu as a photograph of “Alaji”, his co-conspirator. But in what Lord Justice Pill, hearing the application for habeas corpus, called a “dramatic development”, the day before the hearing on the application, the Department of Justice disclosed a report it had made of the photographic lineup in which Fillmore had supposedly identified Kashamu as Alaji:
[the officer] took the copy of the arrest photograph of Kashamu and placed it in a DEA form 470, photo identification folder, with seven photographs of black males. These black males had similar facial hair and were the approximate age of Kashamu. This photo lineup was shown to Fillmore. Fillmore provided the following statements: ‘It is not jumping out at me, I know what the man looks like.’ Fillmore further stated that the photograph #03 looked like a bad photograph of him. Photos #02, #04, #06, #07 [the photo of Kashamu] and #08 did not look like him at all. Fillmore stated that #05 looked a lot like him but did not look like him. Fillmore ruled out photograph #01. Fillmore stated that #05 looked the closest to Alaji.
The US government had not disclosed this report at the time it applied for extradition. What’s worse, the Assistant US Attorney prosecuting the case had been advised by the Justice Department that she did not need to disclose the report to the UK authorities:
I asked you in February 1999 whether we needed to disclose this information about the viewing of Fillmore … of the recent (December 1998) photograph of Kashamu in their affidavits attached to our extradition submission. You advised against it because, as you explained, the extradition treaty between the United Kingdom and the United States did not require that such disclosures be made. At some point after the extradition materials were submitted in the London proceeding, I raised this issue again and you again advised against disclosing the information
Yikes!
Lord Justice Pill, after a technical discussion of whether a remand to the metropolitan magistrate was necessary and whether it was ever proper to look to evidence outside the record that was before the magistrate at the time of committal, granted the writ on the grounds that the committal proceedings were fundamentally unfair—a point which the UK government conceded. But it’s noteworthy that he wasn’t convinced that, had the US government disclosed the problems with the photographic identification, the magistrate necessarily would have refused to commit Kashamu to prison:
I deal first with Mr Fitzgerald’s first submission; that is, that upon Fillmore’s evidence as it is now known to be, no magistrate could reasonably commit, and the committal order should be quashed on that ground. I reject that submission. There could, upon a full consideration of all the evidence, including an assessment of the comparative value of the two photographs, and, for example, the lapse of time between the relevant events and the arrest photograph, have remained a possibility that a magistrate would have been entitled to commit. Given the task of this court, it should not interfere with the decision on that ground.
The New Extradition Application
But before Lord Justice Pill granted the application for habeas corpus, the US government obtained a new arrest warrant and brought a new extradition application before the same metropolitan magistrate who had ruled the first time around. This time, the government provided affidavits in which witnesses identified Kashamu with Alaji, relying on voice identification and photographic identification. At the second extradition proceeding, Kashamu argued that he was a victim of mistaken identity and that he was:
an informant for the Nigerian drug enforcement agency, and for Interpol in another African country (Benin), and that he had a brother who looked remarkably like him—and who was a drug dealer. Kashamu submitted letters from the Nigerian agency attesting to his informant status—and our government submitted evidence from the same agency denying that he was an informant.
The magistrate credited Kashamu’s evidence and ordered him released. The US government did not seek another arrest warrant.
Kashamu Seeks Dismissal of the Indictment
Kashamu, who must have felt he had not had enough transnational litigation for his liking, moved to dismiss the indictment after his return to Nigeria on the grounds that the English judge, in refusing to extradite him, had found that he was not “Alaji”, and that the English judge’s finding of fact should have conclusive effect. Judge Norgle, the presiding judge in Chicago, denied the motion, and Kashamu appealed.
Judge Posner’s Decision
Judge Posner’s characteristically lucid opinion is well worth study. After dealing with objections to the court’s subject matter jurisdiction, he turned to the preclusive effect of Lord Justice Pill’s finding of fact. Ordinarily issues of recognition of foreign judgments are matters for state law under the Uniform Foreign Money Judgment Recognition Act, but the statute (as it’s title suggests) doesn’t apply in this context, and in any case the matter was one of federal law rather than state law, so Judge Posner looked to the federal common law of comity, under which, he noted, the courts generally give recognize foreign judgments, particularly judgments of countries whose “judiciary is respected, as in the case of the United Kingdom’s judiciary”. Ordinarily the court would look to the preclusion law of the foreign state (and Judge Posner undertook an analysis of English law and concluded that under English law, the judgment would not have preclusive effect). But because the parties had begun from the premise that federal common law governed, he decided the case under US law. The government’s view was that an order on extradition can never have preclusive effect because it is never final—the government can always make another extradition request. Of course, an extradition proceeding does not put the defendant in jeopardy for criminal law purposes. But Judge Posner noted that a final judgment is not an absolute prerequisite to issue preclusion. Even so, an extradition hearing ordinarily is not a full and fair hearing in the sense necessary for collateral estoppel, because the foreign government can always rearrest the defendant and introduce new evidence. But while
discharge . . . on [a] petition for habeas corpus . . . does not operate as res judicata . . . a judgment in habeas corpus proceedings discharging a prisoner held for preliminary examination may operate as res judicata . . . that he was at the time illegally in custody, and of the issues of law and fact necessarily involved in that result.
Collins v. Loisel, 262 U.S. 426, 430 (1923) (Brandeis, J.). Judge Posner found the circumstances of this case, while unusual, were not sufficient to give the magistrate’s findings preclusive effect:
Our government had not presented enough evidence to convince the English magistrate that Kashamu was Alaji, but Kashamu had not presented enough evidence to convince the magistrate that he was not Alaji. The only findings that the magistrate made that could possibly be entitled to collateral estoppel effect in a trial of Kashamu for participation in the drug conspiracy were that Kashamu had a brother who bore a striking resemblance to him, the brother was a member of the conspiracy that the government thinks was led by Kashamu, Kashamu had given information about the conspiracy to Interpol and Nigerian law enforcers, and contrary to what our government believed the brother had not died in 1989. These findings if admissible would bolster his defense but would not require an acquittal, and thus would not require the dismissal of the indictment. A reasonable jury might find that Kashamu had exploited the resemblance to his brother to create doubt about his (Kashamu’s) being Alaji; that the brother was another conspirator but Kashamu was the leader; that maybe both were the leaders, like Roman Consuls; that maybe the brother was sole leader but Kashamu was a follower like the other defendants; and that Kashamu had given information to Interpol and the Nigerian authorities to throw them off the scent (it was not disclosed in the extradition hearing whether this information assisted the U.S. government’s investigation that culminated in the indictment). In light of these possibilities the magistrate was quite right not to find that Kashamu wasn’t Alaji.
Judge Posner concluded that while there was evidence going both ways, there was plainly probable cause to believe that Kashamu was Alaji, and that the magistrate improperly “turned what would normally have been a summary proceeding to determine probable cause into a trial of who is more likely to be Alaji.” The magistrate’s finding that Kashamu had a brother who looked just like him was unnecessary to his finding that there was insufficient cause to extradite him, and thus even that finding would not be entitled to preclusive effect in a US court.
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