September 19, 2011
Extradition: Order Denying
Extradition From Foreign Tribunal
Is NOT a Basis for Motion to Dismiss
Indictment in U.S.
UNITED STATES OF AMERICA v.
BURUJI KASHAMU, No. 10-2782
This appeal requires us to consider the
collateral estoppel effect, if any, of
findings made by foreign courts in
extradition proceedings.
Back in May 1998 defendant Kashamu
was one of fourteen persons charged in
an indictment returned by a federal
grand jury in Chicago with conspiracy
to import and distribute heroin in
violation of 21 U.S.C. § 963. He was
indicted both in his own name and
under what the government believed to
be two aliases that he used: "Alaji" and
"Kasmal." But he could not be found.
He had not been arrested; he did not
jump bail; his whereabouts simply were
unknown. The government did not ask
that he be tried in absentia. The case
proceeded against the other
defendants and all of them were
convicted.
In December 1998 Kashamu surfaced
in England and was arrested at our
government's request. Justice
Department lawyers, working with their
English counterparts, sought his
extradition to the United States to
stand trial. The English Judge,
(referred to as a magistrate, as we will
refer to him in this opinion) decided not
to order him extradited.
In February 2009, Kashamu filed a
motion in the district court in Chicago
to dismiss the indictment against him
on the ground that the English
magistrate had found that he was not
"Alaji" and the finding should be given
collateral estoppel effect in the criminal
proceeding and that if this was done he
could not be convicted and therefore
shouldn't have to stand trial. The
district judge denied the motion,
precipitating this appeal.
The government argues that we have
no jurisdiction because a finding made
in an extradition proceeding can never
be given collateral estoppel effect and
so clear is this that Kashamu's
challenge to the denial of his motion to
dismiss the indictment should not be
deemed even "colorable." An appeal
that is not colorable—that is frivolous—
should simply be dismissed.
The challenge to the indictment may
be sound or unsound, but, as we're
about to see, it's not frivolous. And
although the order appealed from—the
denial of a motion to dismiss an
indictment on collateral estoppel
grounds—is not a final order (the
criminal proceeding initiated by the
indictment remains pending in the
district court), it is appealable under
the collateral order doctrine. Kashamu
is asserting a right not just not to be
convicted, but not to be tried, and such
a right would be lost forever if review
were postponed until final judgment.
See Abney v. United States, 431 U.S.
651, 658-60 (1977)
Normally, it is true, the denial of a
motion to dismiss an indictment cannot
be appealed immediately if the ground
of the motion can be reasserted if and
when the defendant is convicted, as in
such cases as Midland Asphalt Corp. v.
United States, 489 U.S. 794, 799-800
(1989).
But there is an exception when the
ground is double jeopardy and the
double jeopardy clause has been held
to incorporate the doctrine of collateral
estoppel. Yeager v. United States, 129
S. Ct. 2360, 2366-67 (2009).
As long as the indictment against
Kashamu remains pending, the
government can seek to extradite him
from any country that has an
extradition treaty with the United
States. If the United States succeeds in
extraditing Kashamu it will put him on
trial, and even if he is acquitted he will
have lost a right that he claims the
collateral estoppel doctrine gives him.
There is an analogy to the right to
appeal, under the collateral order
doctrine, a denial of a motion made
before trial to dismiss a suit on grounds
of official immunity. Such a denial is an
interlocutory order. Mitchell v. Forsyth,
472 U.S. 511, 525-30 (1985).
So we have appellate jurisdiction and
turn to the question whether it is true
as the government argues that a ruling
rejecting a request for extradition can
never have collateral estoppel effect.
Ordinarily the preclusive effect of a
judicial order is determined under the
law of the jurisdiction that issued the
order, but that is by virtue of the
Constitution's full faith and credit
clause and its implementing statute.
28 U.S.C. § 1738. When the order is
issued by a foreign court, a domestic
court is not bound by the full faith and
credit clause or statute to comply with
the foreign jurisdiction's preclusion
rules.
So what should the domestic court (in
this case the federal district court in
Chicago) do? There is no consensus.
Comity is a doctrine of deference based
on respect for the judicial decisions of
foreign sovereigns. When the foreign
judiciary is respected, as in the case of
the United Kingdom's judiciary, and the
rule on which the finding sought to be
given preclusive effect is based doesn't
offend a strong U.S. policy, the federal
courts should defer to that finding. This
suggests that the district court should
have applied the United Kingdom's
concept of collateral estoppel in
deciding what weight to give the ruling
of the English magistrate, provided that
concept does not offend U.S. policy.
But we are not sure the suggestion is
correct, given the peculiarity of this
case. The English judiciary had and has
very little interest—maybe no interest—
in it. Our government asked England to
extradite a Nigerian who does not, and
doubtless has no right to, reside in
England. It would hardly matter to
England whether Kashamu is tried in
the United States.
But set that point to one side and
assume that we should apply the
English doctrine of collateral estoppel to
this case. The English doctrine (which
the English call "issue estoppel" is
similar to the American, but there are
differences. One is that it cannot be
used against a nonparty to the case in
which the determination sought to be
used as an estoppel was rendered.
A second and critical one is that English
law does not apply the doctrine to
criminal cases. Regina v. Humphrys,
1977 A.C. 1, 21 (H.L.).
The English further insist that the
ruling sought to be given preclusive
effect be final. Carl Zeiss Stiftung v.
Rayner & Keeler Ltd. (No. 2), 1 A.C.
853, 918 (H.L. 1966). The English
judges have intimated that their
determinations in Kashamu's
extradition hearings (there were two
hearings) were not final.
And an English treatise states that "if
the accused is discharged by the
magistrates at the end of the committal
proceedings this is not the equivalent
of an acquittal at trial. He or she may
be charged again with the same
offence, and be required to undergo
committal proceedings again."
So the defendant loses under English
law even if an English court would
recognize collateral estoppel in a
criminal case. But earlier we expressed
doubt whether the English rule of
collateral estoppel should bind us in
this unusual case. Furthermore the
parties haven't mentioned the English
rule. They have assumed that U.S. law,
specifically the federal common law rule
of collateral estoppel (the rule
applicable when the finding in question
was made by a federal court), governs.
Ordinarily a court will enforce the
choice of law rule selected by the
parties, no questions asked, unless
they select a foreign law that would be
too difficult for the federal court to
apply. Tomic v. Catholic Diocese, 442
F.3d 1036, 1042 (7th Cir. 2006).
So while in the absence of agreement
to apply U.S. law we might apply the
foreign law of collateral estoppel in this
case,we shall bow to the parties' tacit
agreement and decide the case under
federal common law.
In that law collateral estoppel is
available to defendants in criminal
cases. Ashe v. Swenson, supra, 397
U.S. at 442-44; United States v.
Oppenheimer, 242 U.S. 85, 87-88
(1916) (Holmes, J.). But the
government argues that the rule
cannot apply to extradition
determinations because the rejection of
a request for extradition is always
provisional—it is not a final order. Eain
v. Wilkes, 641 F.2d 504, 508 (7th Cir.
1981). It is like a magistrate's ruling
that there isn't probable cause to hold
a person whom the police have
arrested; the person goes free but can
be rearrested. Fed. R. Crim. P. 5.1(f).
Likewise, when a request for extradition
is denied, the prosecutors can renew
the request (they may have obtained
additional evidence), United States ex
rel. Rutz v. Levy, 268 U.S. 390, 393
(1925), the extradition proceeding is
deemed not to have placed the
defendant in jeopardy. And when a
person sought to be extradited has
moved from the country that first
denied extradition to another country,
there is nothing in U.S. law to prevent
our prosecutors from asking that
country to extradite him—which is not
to say that the country will grant the
request.
But the lack of finality of a denial of
extradition is not conclusive of whether
the denial should be given collateral
estoppel effect. In Lummus Co. v.
Commonwealth Oil Refining Co., 297
F.2d 80, 89 (2d Cir. 1961) .
Ordinarily an attempt to give collateral
estoppel effect to a finding made in a
hearing on a request for extradition
would be blocked because that
hearing, like a preliminary hearing for
an arrested person, would not have
been full and fair (particularly not full),
as the doctrine of collateral estoppel
requires. But while extradition
hearings, like preliminary hearings, are
normally summary, they aren't always
—they weren't in this case.
Collins v. Loisel, 262 U.S. 426, 430
(1923) (Brandeis, J.), held that while
"discharge . . . on the first 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." This holding is authority
for regarding findings made in
extradition hearings as eligible to be
given collateral estoppel effect, at least
in special circumstances—so let us
consider whether such circumstances
are present in this case.
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. 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. In light of these possibilities the
magistrate was quite right not to find
that Kashamu wasn't Alaji.
But we go further: we don't think that
even the findings that the magistrate
did make would have collateral
estoppel effect in a trial of Kashamu.
The actual ruling was that the evidence
the prosecutors had presented would
not have been sufficient to justify
Kashamu's committal for trial had the
crime of which he was accused been
committed in England. The English
standard for committal is whether there
is "sufficient evidence to put [the]
accused on trial for any indictable
offense." The question whether a jury
would convict Kashamu in a trial in
which all the evidence bearing on his
guilt would be presented is different
from whether a judge would find
probable cause on the basis of a much
scantier record to believe that he had
committed the charged offense. I
f for example the finding that Kashamu
and his brother bear a striking
resemblance to each other were given
collateral estoppel effect, then in a trial
in the United States the prosecution
would not be permitted to contest the
proposition that they bear a striking
resemblance to each other.
We don't think it could be doubted that
there was probable cause to commit
Kashamu for trial (and for that matter
probable cause to believe he's Alaji—for
he may well be, and that is enough to
establish probable cause). The
magistrate turned what would normally
have been a summary proceeding to
determine probable cause into a trial of
who is more likely to be Alaji, Kashamu
or his brother? All that was necessary
for the denial of extradition was the
magistrate's determination that he had
been given insufficient evidence to
satisfy him that Kashamu was Alaji—
not his finding that the two brothers
look alike (or his other findings which
we mentioned), though that finding
supported his determination.
Only findings that are necessary to a
court's decision (in this case as in our
hypothetical case of a decision
quashing an arrest) are entitled to
preclusive effect. Bobby v. Bies, 129 S.
Ct. 2145, 2152-53 (2009) For if they
are not necessary, neither party has an
incentive to challenge them in the
litigation in which they are made.
Moore v. Mahone, No. 09-3515, 2011
WL 2739771, at *1 (7th Cir. July 15,
2011).
For all these reasons, the order of the
district court denying the motion to
dismiss the indictment is
AFFIRMED.
For the full opinions visit the 7th Circuit
Court of Appeals Web Site
For more about Chicago Federal
Criminal Defense Attorney Michael
J. Petro, visit www.mjpetro.com