The Case Against Kashamu
By Patrick J. Fitzgerald
(United States Attorney)
United States of America v. Hayes et al
Illinois Northern District Court, Case No. 1:94-cr-00172
District Judge Charles R. Norgle, Sr, presiding
After lawyers to Buruji Kashamu moved a Motion to quash the arrest warrant issued by Judge Charles R. Norgle in this case, US government’s issued a detailed response saying the motion should be denied because principles of res judicata do not apply to extradition proceedings and the government may initiate multiple extradition proceedings against Kashamu in an effort to secure Kashamu’s appearance in this case.
In March 1994, defendant Kary Hayes, a passenger arriving at O’Hare International Airport (“O’Hare”) on a flight from Zurich, Switzerland, was arrested after he tried to smuggle into the United States a suitcase containing approximately 14.16 pounds of heroin. Hayes was one of a long line of couriers in a heroin smuggling operation led by Kashamu. Kashamu arranged: (a) the pick up of the heroin by the couriers in Europe and Indonesia; (b) the transfer of the heroin to others once the heroin entered the United States; (c) the payment of the couriers and the people who supervised them; and (d) the carrying by couriers of large sums of cash during the couriers’ outbound trips from the United States for delivery to him in Europe and elsewhere. The government charged Hayes and other couriers after this initial arrest. Many of these couriers cooperated and provided information about their contacts with Kashamu.
A. The Charges Against Kashamu.
On May 21, 1998, a grand jury charged Kashamu and others in a Second Superseding Indictment with conspiracy to import heroin into the United States in violation of Title 21, United States Code, Section 963. Between July 7, 1998 and January 27, 1999, nine of the fourteen defendants named in the Second Superseding Indictment pled guilty. These nine defendants admitted their participation in the heroin smuggling organization and all acknowledged that Kashamu, the man they called “Alaji” or “God,” was the person ultimately in charge of the heroin smuggling organization. Some of these couriers, including defendants Catherine Cleary Wolters and Nicholas Fillmore, Jr., had visited with Kashamu at his residence in Benin in connection with the heroin smuggling organization. One of the couriers, defendant Ellen Wolters, had a romantic relationship with Kashamu. The smuggling trips and trips to visit Kashamu in Benin were documented by, among other things, money transfer orders from Western Union and American Express, flight records, credit card charges, hotel records, and telephone call detail records. The telephone records, for example, reflected calls from the couriers to Kashamu’s residence in Benin.
B. Kashamu’s Arrest and the Initiation of Extradition Proceedings.
The government requested the issuance of a provisional arrest warrant against Kashamu based on information that he traveled to London, England on occasion. On December 18, 1998, the Metropolitan Police arrested Kashamu in London, England when he arrived on an inbound flight. Kashamu was found in possession of approximately $230,000 in cash at the time. Kashamu traveled under the name “Kashamu” and possessed identification documents including a passport from Benin, “Carte Nationale D’Identite” from the Republique du Benin, and a business card bearing the notation “Group Kasmal International, Import-Export-Industrie, Representant Exclusif, Daewoo & Sang Yong Motor.” One of the addresses listed for “Group Kasmal International” on the business card was a location in Cotonou, Benin. Three of the defendants had described to the government prior to Kashamu’s December 18, 1998 arrest what they understood to be some of the businesses with which they understood “Alaji,” the leader of the heroin smuggling conspiracy, to be associated. Catherine Wolters, for example, stated that “Alaji” owned “Kasmal Exports” in Benin. Fillmore stated that “Alaji” owned in Benin an import/export company called “Kasmal” and an automobile dealership called “Daewood.” Barry J. Blow stated that “Alaji” lived in Benin and imported rice and was involved in a car dealership in Belgium.
Kashamu was ordered detained following his December 1998 arrest and he was incarcerated in London’s Brixton Prison during the pendency of extradition proceedings based on the government’s warrant in the instant case. Kashamu’s arrest triggered the commencement of the time limit for the government’s submission in support of extradition. Extradition proceedings arising from warrants issued in pending federal cases are coordinated through the Department of Justice’s Office of International Affairs (“DOJ OIA”). The paperwork in support of the extradition, including the affidavits in support of the extradition, however, is compiled initially at the local level, in this case by the undersigned attorney. The government is required, as a part of the extradition proceedings, to establish identity, i.e., a link between the person arrested and the person charged. The undersigned attorney compiled affidavits from, among others, Catherine Wolters and Fillmore concerning their interaction with Kashamu and their identification of him in a photospread.
Both Catherine Wolters and Fillmore had, prior to Kashamu’s December 18, 1998 arrest, identified a photograph of Kashamu from a photospread as the person whom they knew to be in charge of the heroin smuggling organization. The case agents referred to the photograph of Kashamu as the “surveillance” photograph because the agents believed at the time that overseas law enforcement officers had taken the photograph while on surveillance. The government obtained a copy of Kashamu’s December 18, 1998 arrest photograph and placed it into a photospread The government showed Fillmore this second photospread at some point after Kashamu’s arrest and before transmitting the extradition paperwork to DOJ OIA. Kashamu’s arrest photograph appeared in Position 7 of the photospread.
As Fillmore viewed the arrest photospread, Fillmore stated “it’s not jumping out at me” and that he knew what “Alaji” looked like. Fillmore told the agents that the photograph in Position 3 looked like a bad photograph of “Alaji” and that the photographs in Positions 2,4,6, and 7 did not look like “Alaji” at all. Fillmore stated that the photograph in Position 5 looked a lot like “Alaji” but also did not look like him. Fillmore ruled out the photograph in Position 1 and stated that the photograph in Position 5 looked the closest to “Alaji.”
In February 1999, agents from the United States Customs Service showed another cooperating defendant, Brian Christman, Kashamu’s arrest photograph. Christman could not make a positive identification of Kashamu, the person whom he also knew as “Alaji,” from the photograph. The arrest photograph of Kashamu was not a part of a photospread when agents showed the photograph to Christman.
In February 1999, while preparing the extradition paperwork, the undersigned attorney advised the DOJ OIA lawyer assigned to the extradition case that Fillmore had not identified Kashamu’s arrest photograph in a photospread and had instead indicated that another photograph in the photospread looked more similar to the person whom he knew as “Alaji.”
The undersigned attorney also explained Christman’s inability to positively identify “Alaji” from the arrest photograph. The undersigned attorney asked the DOJ OIA lawyer whether the government needed to disclose the information about the viewing by Fillmore and Christman of the arrest photograph in the affidavits of Fillmore and Christman attached to the extradition submission. The DOJ OIA lawyer advised against the inclusion of the information because the extradition treaty between the United Kingdom and the United States did not require that such disclosures be made.
C. The First Extradition Proceeding.
In approximately February 1999, the United States, through DOJ OIA, and the Crown Prosecution Service, the representative of the United States in the extradition proceedings, timely submitted the extradition package to the London court. In May 2000, as part of the extradition proceedings, Kashamu submitted documents in which he claimed for the first time that, prior to his December 1998 arrest, he cooperated with law enforcement authorities in Benin, Togo and Nigeria and that he told these authorities that his brother, Adewale Kashamu, was involved in drug trafficking activity. The government had no knowledge of any alleged cooperation by Kashamu or of the existence of any alleged brother before Kashamu made these claims. The undersigned attorney again raised with the DOJ OIA attorney the issue of disclosing the results of the viewing by Fillmore and Christman of the arrest photograph. The DOJ OIA attorney again advised against disclosing the information.
On or about May 28, 1999, Metropolitan Magistrate Timothy Workman committed Kashamu to prison to await extradition to the United States. GEx4. On or about June 11, 1999, Kashamu through counsel sought permission to apply for judicial review to quash the committal order. At some point, during the pendency of this review, the government, through the Crown Prosecution Service disclosed the information about the viewing by Fillmore and Christman of the arrest photograph. On October 6, 2000, the High Court of Justice, Queen’s Bench Division, ruled that the “committal order must, in the circumstances, be quashed by reason of the unfairness of the proceedings resulting from the non-disclosure of crucial evidence [the Fillmore response to the arrest photograph], as accepted by the Government.” The Court noted that “[i]f they seek to proceed, the Government need to seek a fresh warrant.” Id. at 7, ¶ 29.
D. The Second Extradition Proceeding.
The government obtained a new warrant against Kashamu and executed it before Kashamu was released from custody. A second extradition proceeding was thereafter initiated before Magistrate Workman, the same judge who had considered the first proceeding. The government submitted additional materials to show that Kashamu, the person in custody, was the same person as “Alaji,” the leader of the heroin smuggling conspiracy. The government, for example, showed the arrest photospread separately to defendants Catherine Wolters and Ellen Wolters. Both Catherine Wolters and Ellen Wolters identified the photograph in Position 7 (Kashamu) as the person whom they knew as “Alaji.” The government also separately played for Catherine Wolters and Ellen Wolters a recording of a telephone conversation Fillmore had with “Alaji” in 1996 after Fillmore began to cooperate with the government. Both Catherine Wolters and Ellen Wolters, as Fillmore had previously, identified the voice on the recording as that of “Alaji.” The Wolters sisters were in different states when they each viewed the arrest photospread and listened to the recorded conversation. The government’s submission included affidavits from Catherine Wolters, Ellen Wolters and Fillmore setting forth these identifications, and an affidavit from Special Agent Daniel
Morro describing the process he employed in showing the arrest photospread and in playing the recorded conversation. The Fillmore affidavit also described Fillmore’s earlier viewing of the arrest photospread and Fillmore’s responses. The government also included a copy of the recorded conversation in the submission as well as a transcript of the conversation. On or about November 29, 2000, the DOJ OIA, through the United States Embassy in London, presented these new submissions, as well as the submissions from the first extradition proceeding, to the Crown Prosecution Service for use in Kashamu’s second extradition proceeding.
On or about December 2, 2000, the undersigned attorney informed one of the Crown Prosecution Service attorneys representing the United States in the second extradition proceeding that the case agents had learned that the photograph referred to as the “surveillance” photograph of Kashamu had been supplied by a confidential informant. The Crown Prosecution Service relayed this information to Kashamu’s attorney in the second extradition proceeding.
On March 13, 2001, Magistrate Workman refused to hear and determine Kashamu’s claim that the institution of the second extradition proceeding amounted to an abuse of process and that the proceeding was oppressive. Magistrate Workman suggested that the abuse of process claim be submitted to the High Court for review to determine the appropriate forum in which such claims should be considered. Kashamu filed an application for habeas corpus and judicial review with the High Court in connection with Magistrate Workman’s refusal to hear his abuse of process claims. At some point in 2000, Chicago attorney Thomas Anthony Durkin notified that government that he had been retained as Kashamu’s United States-based attorney. The High Court combined Kashamu’s habeas application with that of two other individuals whose extradition was also being sought by the United States.
On November 23, 2001, the High Court ruled that the Magistrate’s Court, and not the High Court, was the appropriate forum to hear evidence and submissions and making findings of fact as to abuse of process. The High Court returned the case to the Magistrate Court for the resumption of the second extradition proceeding.
The second extradition proceeding before Magistrate Workman focused primarily on two claims raised by Kashamu to challenge his identity: (1) Kashamu was a cooperator with the Nigerian Drug Law Enforcement Agency (“NDLEA”); and (2) Kashamu told the NDLEA, among other things, that his alleged brother, Adewale Adeshina Kashamu, whom Kashamu claimed looked remarkably similar to him, was a drug trafficker. The parties submitted evidence about Kashamu from Nigeria, through various officials including those associated with the Nigerian Drug Enforcement Administration “NDLEA”), as well as from other West African countries including Benin and Togo. This foreign evidence was at times contradictory.
Throughout the second extradition proceeding, Kashamu’s counsel levied accusations of misconduct against the government’s identification evidence and the responses the government had obtained from foreign officials.
E. The Identification of Kashamu’s Arrest Photograph by the Wolters Sisters.
On or about October 23, 2001, Akhtar Raja, Kashamu’s counsel, submitted an affidavit to Magistrate Workman in which he claimed that the additional identification evidence was “profoundly tainted” because the undersigned attorney had “given [to the Wolters sisters] details of the [October 6, 2000] judgment” of the first extradition proceeding which referenced the position of Kashamu in the arrest photospread. The undersigned attorney had not disclosed to either Catherine Wolters or Ellen Wolters, or to their respective attorneys, the position of Kashamu’s photograph in the arrest photospread.
On or about November 16, 2001, the undersigned attorney submitted to the Crown Prosecution Service letters dated November 6, 2001 from Alan A. Dressler, attorney for Catherine Wolters, and from Steven R. Shanin, attorney for Ellen Wolters. Mr. Dressler stated that the claim that he had been given details of the October 6, 2000 judgment was “categorically untrue.” Id. Mr. Dressler stated that neither he nor his client knew in advance of viewing the photospread the position of Kashamu’s photograph. Id. Mr. Shanin stated in his letter that to the best of his recollection he never received copies of any of the documents concerning the extradition proceedings and that neither he nor his client had any advance knowledge of the position of Kashamu in the photospread or even if the photospread contained Kashamu’s photograph. Id. Mr. Shanin further stated that Ellen Wolters’s identification of Kashamu “was spontaneous, without any hesitation, and without any impropriety whatsoever on the part of any government agent including AUSA MacArthur.” Id.
F. The Contradictory Evidence Concerning Kashamu’s Status as a Cooperator.
The United States government sent an inquiry to Interpol in Benin, Togo and Nigeria about whether Kashamu ever acted as a cooperator with their law enforcement agencies. In April 2000 (received by the undersigned attorney in October 2000), Interpol Benin responded that Kashamu, “a well known businessman in Cotonou,” “collaborated with the police of Benin (BCN-IP Cotonou) within the scope of the fight against drug trafficking from 1993 to 1995.”
In July and August 2000, Interpol Togo relayed that Buruji Kashamu “had provided service to Togo” from 1990 to 1997 “in the area of information concerning narcotics traffickers” and that the “Chiefs of the Immigration Service … and Interpol” confirmed that Kashamu provided “confidential information concerning his brother the man named Adewale Adeshina Kashamu who also belonged to a drug trafficking network.”4 The undersigned attorney forwarded these responses to DOJ OIA and to the Crown Prosecution Service for production to Kashamu’s counsel.
On or about October 11, 2001, the undersigned attorney received from the United States Drug Enforcement Agency (“DEA”) office in Lagos, Nigeria a telex referring to “information” received by the DEA from the NDLEA on March 12, 2001. GEx8. On or about November 8, 2001, the undersigned attorney received by facsimile transmission from DEA Special Agent Vincent Fulton, who was stationed in the DEA’s Lagos office, a “fax transmittal sheet” with an attached letter dated March 12, 2001 from the NDLEA. Id.. The NDLEA letter was addressed to “The Ambassador of the Embassy of the United States of America” and was signed by B. Lafiaji, Chairman of the NDLEA.
The March 12, 2001 letter from Chairman Lafiaji represented that Kashamu “had, at no time, been an informant of this Agency [NDLEA] nor has the Agency had cause to reward him for anything.” Id. The letter also stated that “Alhaji Adewale Adeshina Kashamu, a wanted drug suspect, was already dead by the time Buruji Kashamu was wanted by this Agency in 1994, having died while attempting to run away from Customs investigation for involvement in drugs.” Id.
Kashamu presented in the second extradition proceeding a letter dated January 24, 2000 on NDLEA letterhead purportedly signed by O. O. Onovo, “Chairman, Chief Executive, NDLEA.” The letter stated that “[y]our client [Kashamu] has been very helpful to us in the area of fighting crime and we are surprised that he is being incarcerated on wrong accusation of drug trafficking in the UK.”
On November 9, 2001, the day after receiving the NDLEA letter Initially, in June 2000, Interpol Togo responded that “the man named Buruji Kashama [with the same date of birth as “Buruji Kashamu”] … is unknown in the Anti-Narcotics Brigade of the National Central Bureau–Interpol Lome.”
Representing that Kashamu was not a cooperator, the undersigned attorney requested by facsimile transmission that DEA Lagos seek a response from the NDLEA about these conflicting letters. Id. On or about November 15, 2001, the undersigned attorney received from Special Agent Fulton a letter on NDLEA letterhead dated November 15, 2001 signed by U. Amali, the Special Assistant to the Chairman and Chief Executive of the NDLEA. Id.. The letter stated that the letter submitted by Kashamu dated January 24, 2000 (as well as a letter dated January 13, 2000) were “bogus” and their contents “absolutely false.” Id. The undersigned attorney informed the Crown Prosecution Service of these responses. Kashamu thereafter submitted affidavits which purported to be from Iliya Mshelia, Chief Prosecutor and Deputy Director in the Legal Services Department of the office of the NDLEA Chairman/Chief Executive and Samson Aboki, Director of Public Prosecution of the NDLEA.
The undersigned attorney received these submissions on or about February 4, 2002. Magistrate Workman had scheduled a hearing in the second extradition proceeding on February 7, 2002. The undersigned attorney immediately requested Special Agent Fulton’s “rapid assistance” in finding out from the NDLEA, if possible, whether the two new affidavits were valid and whether the purported affiants even existed. GEx8. The next day, on or about February 5, 2002, the undersigned attorney received from Agent Fulton a letter on NDLEA letterhead dated February 5, 2002 from Usman Amali, Chairman/Chief Executive of NDLEA. Id. Chairman Amali stated in the letter that Kashamu “has never been an informant or source of this Agency, rather he is a fugitive drug offender on the run from arrest, please.” Id. The undersigned attorney forwarded this response to the Crown Prosecution Service.
Magistrate Workman’s February 28, 2002 Decision to Allow the Second Extradition Proceeding to Move Forward to the Defense Case. On or about February 28, 2002, at the conclusion of the government’s presentation of its case, Magistrate Workman held that, “[s]ubject to any further evidence I am asked to consider, I am of the view that these issues [of the identification process] touch upon the fairness of the trial itself and, if there is any abuse of process, it will be for the trial judge to consider whether a fair trial is possible rather than whether it is unfair to try the defendant. For my own part I think these issues are essentially matters of admissibility and credibility rather than an abuse of process.” Magistrate Workman concluded that “[i]n the light of this decision the court will now have to move to consider the evidence and the sufficiency of the arguments.” Id. The proceedings then shifted to Kashamu’s affirmative presentation of evidence, including witness testimony, and the government’s rebuttal of that evidence.
G. Kashamu’s Affirmative Presentation of Evidence.
On or about May 9, 2002, Magistrate Workman conducted a hearing in Kashamu’s second extradition proceeding. Before the hearing, Kashamu presented a letter in which NDLEA “Chairman” Amali purported to represent that Kashamu was not arrested in 1994 and was not “on the list of persons wanted for prima facie drug offenses by the Agency, per se.” The letter also represented that Kashamu’s brother had not died in the custody of the Nigerian Customs Service. Kashamu’s submission revealed that Kashamu had sued the NDLEA because the NDLEA had not, in Kashamu’s view, retracted the negative information in its letters about him. The undersigned attorney received Kashamu’s submission on or about May 5, 2002 and immediately thereafter requested that Special Agent Fulton in Lagos find out why there had been such an apparent change in the NDLEA’s position on Kashamu’s status. Id. The request to Agent Fulton contained certain questions to pose to the NDLEA representative. Id.
On May 8, 2002, the day before the hearing, the undersigned attorney received from Agent Fulton a letter on NDLEA letterhead dated May 8, 2002 signed by Usman Amali, Special Assistant to the Chairman/Chief Executive of the NDLEA, which contained answers to the posed questions. Id. The letter stated that “[t]he Agency stands firmly by its earlier assertion that Buruji Kashamu has never been a cooperator with NDLEA” but that, after being presented with a passport issued in 1990 to Adewale Kashamu, the Agency found it “difficult to continue to assert [its] earlier conclusion that Adewale Kashamu died in the custody of the Nigerian Customs Service before the establishment of NDLEA in 1989.” Id. The letter confirmed that Kashamu’s attorneys had “threaten[ed] to take legal action against the Agency and the Federal Government of Nigeria if the letters were not retracted.” Id. The undersigned attorney forwarded the response to the Crown Prosecution Service.
On or about September 17, 2002, through DOJ OIA, the United States Embassy presented to the Crown Prosecution Service an additional submission for use in the second extradition proceeding. This submission compiled the communications between the undersigned attorney, the DEA agents in Lagos, and the NDLEA responses. The submission also included, among other affidavits, sworn affidavits dated July 29, 2002 from NDLEA Chairman Lafiaji and Special Assistant Amali. Chairman Lafiaji confirmed that his statement in his March 12, 2001 letter that Kashamu remained a wanted suspect in Nigeria was accurate based on information that had been compiled and was known at that time. Special Assistant Amali confirmed the accuracy of the statement in his May 8, 2002 letter that Kashamu had never been a cooperator with NDLEA. Magistrate Workman heard evidence on Kashamu’s behalf from a number of witnesses.
Two witnesses, who identified themselves as having current or former NDLEA associations, testified that Kashamu was a cooperator and that his brother was wanted by the NDLEA for drug offenses. One of the NDLEA witnesses testified that Kashamu had a brother who looked very similar to him. An official from Interpol in Benin testified that Kashamu had cooperated with the police in giving information about his brother. The Benin official presented two letters purportedly written in 1993 and 1994 by Kashamu about his brother. Magistrate Workman also received evidence from handwriting experts in an effort to determine whether any of the signatures on the NDLEA letters were forgeries. Kashamu’s expert concluded that the letters were “possibly” written by Kashamu’s lawyer. The government’s expert was unable to come to a conclusive decision.
H. Magistrate Workman’s January 10, 2003 Judgment Dismissing Kashamu’s Second Extradition Proceeding.
On January 10, 2003, Magistrate Workman issued his final decision in the second extradition proceeding. Magistrate Workman found, among other things, that: (1) Kashamu had a similar-looking brother; (2) Kashamu was an informant for Interpol in Benin and Togo and for the NDLEA in Nigeria; and (3) Kashamu’s brother was not killed in 1989 by Nigerian Customs officials.
Magistrate Workman then turned to the question of the government’s alleged misconduct and whether the United States had abused the extradition process. The judge noted that he found certain government assertions to be untrue, particularly the position that Kashamu was not an informant, but that, despite these findings, the government had not abused the process. Magistrate Workman held as follows:
“If the Government was aware of that fact [that Kashamu was an informant] and persisted in putting forward such untruthful evidence, it would plainly be evidence to support an abuse of process submission. However, the evidence emanates from an Agency in Nigeria over which the American Government has no authority. It is then passed to America and then to this country and I cannot be satisfied that it was probable that the Government knew that evidence was false. Although I, and no doubt any trial judge, will be concerned at the lack of care by the United States prosecuting authorities in examining and testing this evidence, I am unable to conclude that the Defence have demonstrated that this was probably done with the knowledge of the United States Government. In those circumstances I do not find there has been an abuse of process”. Id. at 8.
Magistrate Workman next addressed in his opinion whether there was a prima facie case for extradition. The judge reiterated his finding that Kashamu had a brother who bore a “striking resemblance” to him and noted that he was satisfied that the brother was the co-conspirator in the instant case. Id. Magistrate Workman acknowledged that he was “mindful” that the matter of the credibility of the identification witnesses “should essentially remain a matter for a jury.” Id.
Magistrate Workman concluded, however, that he was “satisfied that the overwhelming evidence here is such that the identification evidence, already tenuous, has now been so undermined as to make it incredible and valueless. In those circumstances there is then no prima facie case against the defendant and I propose to discharge him.” Id. at 10. The second extradition proceeding against Kashamu was thereby concluded and Kashamu was released from custody.
1. The Doctrine of Res Judicata Does Not Apply to Extradition Proceedings.
Kashamu argues that, based on Magistrate Workman’s factual finding that Kashamu was “not the person who the United States government seeks,” the principle of res judicata prevents any the relitigation of the issue of Kashamu’s identity. Kashamu Motion at 15. Res judicata, however, does not apply as a result of findings made in an extradition proceeding. The doctrine of res judicata provides that a valid, final judgment, when rendered on the merits, is a bar to a subsequent action between the same parties or those in privity with them uponthe same cause of action. See Lawlor v. National Screen Services Corp., 349 U.S. 322. 326 (1955).
Three factors must be present for res judicata to apply: (1) identity of cause of action; (2) identity of the parties or their privies; and (3) a final judgment on the merits. Golden v. Barenborg, 53 F3d 866, 869 (7th Cir. 1995). Kashamu fails to meet the first and third requirements.
The charges in the instant case did give rise to the extradition proceedings against Kashamu but the purpose of the two proceedings, one to determine guilt or innocence and the other to determine extradictability, differs substantially from each other. See Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir. 1978) (“The function of an extraditing court is not to decide the guilt or innocence of the fugitive at law, but rather to determine whether there is ‘competent legal evidence which…would justify his apprehension and commitment for trial if the crime had been committed in (the forum) state.’” Id. at 1367, quoting Collins v. Loisel (Loisel I), 259 U.S. 309, 315 (1922).
The third element, the finality of the judgment, also is not present because findings made in the extradition proceedings do not constitute a final judgment on the merits. See DeSilva v. DiLeonard, 181 F.3d 865, 868 (7th Cir. 1999) (“Extradition is handled under the civil rules. No jury will sit, no elements of the offense will be adjudicated in a speedy and public trial, the witnesses against them will not confront the accused, jeopardy does not attach (meaning that successive efforts to extradite a person do not constitute double jeopardy.”). See also Hooker, 573 F.2d at 1368 (“The nature of an extradition proceeding is such that the merits of the fugitive’s guilt or innocence are not explored…. Because of the limited function of an extradition proceeding and the limited participation of the fugitive, the order of the court does not reflect a consideration of all the merits of the case.”).
II. The two parties, the United States government and Kashamu, were the same in both proceedings.
Kashamu argues that there have been “two final judgments by British courts” as to Kashamu’s identity and that one of them was “directly on the merits of the case.”6 Kashamu Motion at 8. Neither the High Court nor Magistrate Workman, however, intended their findings to be binding on the trial court in the instant case. The High Court, in its October 6, 2000 decision addressing the non-disclosure of the Fillmore information as to the arrest photograph, contemplated the possibility of an additional extradition proceeding when it noted that the government would need “to seek a fresh warrant” if it wished to proceed again with extradition.
The High Court, in its November 23, 2001 determination of the appropriate forum to consider Kashamu’s abuse of process claim, recognized the limited nature of an extradition proceeding: It does not, however, follow that the district judge can be addressed on all the issues which may arise in the course of a summary trial. Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues. Self-evidently, extradition contemplates trial in another jurisdiction according to the law there. It is there that questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; and if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive’s return.
Similarly, Magistrate Workman, in his January 10, 2003 Judgment, noted that “issues touching upon whether a fair trial is possible must be a matter for the trial judge in the event of the defendant being returned.”. Magistrate Workman recognized that the issue before him was to determine whether there was a prima facie case “to answer” and acknowledged being “mindful” of government’s counsel “submission that the “matter of the credibility of the identification witnesses…should essentially remain a matter for a jury.” It makes sense and it is entirely appropriate that Magistrate Judge Workman’s identity
III. Kashamu does not specify which decisions constitute the two “final judgments” on his identity.
The two extradition findings cannot be binding in future proceedings in the instant case. The proof before Magistrate Judge Workman was limited to the issues related to an extradition proceeding. None of the defendants who identified Kashamu in the instant case testified in the extradition proceeding and thus none of them had an opportunity to view Kashamu face to face in court. Magistrate Workman had no opportunity to assess the credibility of the cooperating defendants through their live testimony and instead had to base his credibility findings solely on written submissions. The government’s evidence as to Kashamu’s identity may also change in the future and one judge’s assessment of the evidence, in the limited context of an extradition proceeding, should not freeze the issue of Kashamu’s identity for all time.
IV. The Government May Reinstitute Extradition Proceedings Against Kashamu Should Kashamu Be Arrested Again.
Kashamu argues that the arrest warrant should be quashed and the indictment dismissed because, due to the irregularities found by Magistrate Workman to exist in the government’s evidence during the extradition proceedings, the government is precluded from instituting an extradition proceeding against Kashamu should he be arrested at some point in the future. Kashamu . The undersigned attorney asked Kashamu’s current counsel if Kashamu would be willing to appear in a lineup and to be viewed by the cooperating defendants in this case in order to resolve the issue of his identity. Kashamu, through counsel, declined the request.
Kashamu cites cases for the proposition that in criminal cases decisions made before jeopardy attaches, such as the dismissal of an indictment, can bar a subsequent prosecution on res judicata grounds. Kashamu Motion at 6-7. See, e.g., Coffey v. United States, 116 U.S. 436 (1886); United States v. H.E. Koontz Creamery, Inc., 232 F.Supp. 312, 318-19 (D. Md. 1964); United States v. American Honda Motor Co., 273 F.Supp. 810 (ND IL 1967); Commonwealth v. Ellis, 35 N.E. 773 (Mass. 1893);; Commonwealth v. Evans, 101 Mass. 25 (Mass. 1869); Brittain v. Kinnaird, 129 E.R. 789 (1819). But, unlike here, these cases involve the finality of findings made as a matter of law in a criminal case as to another criminal case or in cases in which there is an identity of elements and issues. Extradition is a civil proceeding and any findings made therein do not have the same binding effect in a criminal proceeding. There is, however, no such bar to the government’s ability to reinitiate extradition proceedings against Kashamu should he be arrested again.
Courts have consistently upheld the institution of multiple extradition proceedings against the same defendant. See Collins v. Loisel (Loisel II), 262 U.S. 426, 429 (1923) (“[A] fugitive from justice may be arrested in extradition proceedings a second time upon a new complaint charging the same crime, where he was discharged by the magistrate on the first complaint or the complaint was withdrawn.”). See also DeSilva v. DiLeonard, 181 F.3d 865, 868 (7th Cir. 1999); In re Extradition of McMullen,989 F.2d 603, 612-13 (9th Cir. 1993); Hooker v. Klein, 573 F.2d 1360, 1366 (9th Cir. 1978). In Loisel II, the British government requested that the United States extradite a fugitive. The magistrate judge issued an order of extradition but the order was later discharged by the district court because the British government had abandoned the original prosecution due to irregularities in the proceedings. The British government thereafter made a new request for extradition and filed new supporting affidavits. Id. at 428. The magistrate judge found the “second” extradition appropriate. The defendant argued on appeal to the Supreme Court that res judicata barred the second proceeding since the second set of affidavits were identical to those in the first proceeding. Id. The Supreme Court rejected the res judicata argument and affirmed the order of extradition in the second proceeding. Id. at 430-31.
Kashamu argues that Loisel II support of multiple extradition proceedings is distinguishable because in Loisel II, since the first extradition proceeding was dismissed, there were no findings made in the first proceeding. Kashamu claims that here, in contrast, Magistrate Workman made a specific finding that Kashamu’s brother was the co-conspirator with whom the cooperating defendants had contact and that this finding should serve as res judicata in any future extradition proceeding. But Kashamu’s attempt to limit Loisel II’s holding in this manner has been rejected by at least one other court. In Hooker, the Ninth Circuit considered the question of what effect, if any, the denial of an earlier extradition request on the merits should have on a new request for extradition. 573 F.2d at 1366. The Hooker court, after examining Loisel II, concluded that a finding in an extradition proceeding was neither final nor on the merits and that the principles of res judicata were “patently inapplicab[le].” Id. at 1367-68. The court noted that a finding of extraditability signaled the start, not the conclusion of litigation of the fugitive’s guilt or innocence and that the finding was “an interlocutory order, more akin to a preliminary hearing on criminal charges.” Id. at 1367.
The court reasoned that a finding of no probable cause in a preliminary hearing did not bar the government from rearresting the defendant on the same charges. Id. The court also found that, because of the limited function of the extradition hearing, the order of the extradition court “does not reflect a consideration of all the merits of the case.” Id. at 1368. The Hooker court also noted that not barring subsequent extradition proceedings made sense because “[i]n many cases the government may be able to obtain additional information tending to establish the necessary probable cause or else make a more persuasive showing on the basis of the same evidence that an order of extradition is appropriate.” Id.
The government should not be bound by Magistrate Workman’s conclusion that Kashamu’s brother was the co-conspirator because Kashamu’s extradition proceeding was a preliminary proceeding and not a proceeding in which the full merits, and the full evidence, were considered.
Magistrate Workman himself recognized that this Court and the jury were the ultimate determiners of the credibility of the witnesses, including on the issue of Kashamu’s identification as the leader of the heroin smuggling conspiracy, and that his decision was limited to the matter before him. Kashamu is not now entitled to transform Magistrate Workman’s factual finding–made in the limited context of an extradition proceeding based on his assessment of the evidence before him–into a binding decision for all future proceedings.
V. The Government Has Proceeded and Will Proceed in Good Faith in Extradition Proceedings Against
Kashamu claims that the warrant be quashed and the indictment against him be dismissed because the government has violated Loisel II’s “good faith” requirement in its efforts to extradite him. Loisel II, however, does not impose such a requirement and the government, in any event, has not acted in bad faith. In Loisel II, the Supreme Court noted, in addressing whether a fugitive may be arrested a second time in an extradition proceeding, that “[p]rotection against unjustifiable vexation and harassment incident to repeated arrests for the same alleged crime must ordinarily be sought, not in constitutional limitations or treaty provisions, but in a high sense of responsibility on the part of the public officials charged with duties in this connection.” 262 U.S. at 429-430.
The Hooker court construed Loisel II’s reference to “governmental fair-mindedness” to require good faith in the pursuit of extradition of a fugitive. The Hooker court stated in pertinent part as follows: While in Loisel II dismissal of the first extradition order arguably was for reasons of procedural defects rather than on the strict merits, there is no indication the Court intended it’s holding to turn on this distinction. Indeed, the Court’s clearly stated preference for government fair-mindedness over judicial constraints as a curb to abusive use of multiple extradition requests indicates that the Court was formulating a broad rule applicable to the entire practice of reinstituting extradition proceedings. Consequently, we construe Loisel II as holding that where the government in good faith determines that extradition is warranted, it is not bared from pursuing multiple extradition requests irrespective of whether earlier requests were denied on the merits or on procedural grounds. 573 F.2d at 1366.
The Hooker court noted that the decisions of lower courts have been in accord with Loisel II in relying on the government’s good faith to determine if multiple extradition proceedings are warranted. See, e.g., Ex Parte Shorer, 195 F.334 (E.D. Wis. 1912) (court declared it is the power and duty of the government to renew a request for extradition if it is convinced of the merits of its position); In re Kelly, 26 F.852 ( C. C. Minn. 1886) (court noted it would be “a violation of the spirit, if not the letter, of the treaty if there could be no second examination of a fugitive.”).
To the extent that the Hooker court is correct that Loisel II imposes a good faith requirement, the government in the instant case has consistently acted in good faith as to Kashamu and will continue to do so should there be future extradition proceedings against him. The government believes in good faith that Kashamu, and not any alleged brother, is the co-conspirator in this case.
Two cooperating defendants, Catherine and Ellen Wolters, independently identified Kashamu, through his arrest photograph, as the person whom they knew as “Alaji.” The government, to the undersigned attorney’s knowledge, has never received any photograph of the alleged brother and has been unable to test the veracity of Kashamu’s claims about him. The evidence as to Kashamu’s status as a cooperator is contradictory and there is evidence that at least some of Kashamu’s documentary submissions were forgeries. Kashamu’s identity has never been tested by a face-toface viewing by the cooperating defendants and has never been considered in a proceeding freed from a Magistrate Workman’s natural skepticism as to the government’s evidence engendered through the government’s initial non-disclosure of Fillmore’s viewing of the arrest photograph.
The purported “examples” of government bad faith cited by Kashamu in his motion do not withstand scrutiny. Kashamu claims that the High Court found the government’s alleged Magistrate Workman based his finding that Kashamu’s brother looked strikingly similar to Kashamu on oral testimony and affidavits submitted on Kashamu’s behalf. But Kashamu fails to note that the High Court expressly stated, “I do not need and would not wish to categorise the conduct of the Government [in not initially disclosing Fillmore’s non-identification of the Kashamu arrest photograph] as anything other than an error of judgment it is conceded to be.” GEx5 at 6, ¶ 26. Kashamu also claims that the January 10, 2003 Judgment of Magistrate Workman “discussed whether the U.S. government may have manipulated and presented false identification evidence in the second extradition hearing….” Kashamu Motion at 4-5. The citation listed by Kashamu, however, is to Magistrate Workman’s description of an allegation made by Kashamu and not to any findings or conclusions by the judge himself. Indeed, Magistrate Workman expressly rejected the claim that the government had abused the process through the second extradition proceeding.
Kashamu also claims that, based on evidence he presented, Magistrate Workman “could not resolve the issue of whether pressure from U.S. authorities may have led to the creation of inconsistent evidence” by the NDLEA. Kashamu Motion at 5. Kashamu fails to note that Magistrate Workman observed in the January 10, 2003 Judgment that evidence presented of Kashamu’s threatened lawsuit against the NDLEA “may have provided a motive for [the NDLEA] writing factually inaccurate letters.”
Magistrate Workman, rather than castigating the government’s submissions as Kashamu suggests, ultimately concluded that he was “unable to resolve whether undue pressure was exerted either by the United States Government or by the defendant.” Id. Kashamu also presents in purported support of his bad faith claim information about cooperation he provided to the United States about possible terrorism-related activities. In early 2000, Thomas Durkin, then Kashamu’s United States attorney, informed the undersigned attorney that Kashamu had information concerning the “embassy bombing” case.
The undersigned attorney, upon receiving this information, contacted then Assistant United States Attorney Patrick Fitzgerald in the Southern District of New York because Mr. Fitzgerald and his office had handled that case. Mr. Durkin informed the government following the September 11, 2001 attacks that Kashamu had provided information to authorities in London about the attacks. The undersigned attorney, at the request of Kashamu’s counsel, provided Kashamu a proffer letter dated September 21, 2001 to facilitate Kashamu’s presentation of information to the government about this matter. Kashamu Motion.
The government thereafter received from Kashamu a document with multiple handwritten pages. It is unclear from Kashamu’s motion the basis of his bad faith claim in relation to his 2000 and 2001 presentations of information to the government but, in any event, Kashamu’s purported factual recitation of these events is inaccurate. Kashamu incorrectly states that Mr. Fitzgerald offered him “a plea bargain to come to the United States to give evidence in relation to the bombing of the World Trade Center in New York” and that he was “constrained to reject the written offer of a plea bargain, signed by Dianne MacArthur…in exchange for providing information, because he would not plead guilty to an offense for which he claimed innocence.” Kashamu Motion at 5. Mr. Fitzgerald did not offer Kashamu a plea bargain and the undersigned attorney never presented Kashamu with a written plea bargain. Kashamu may be confusing the proffer letter (Ex. C4 to Kashamu’s Motion) with what he calls a “written plea bargain.” But the proffer letter covered information to be presented by Kashamu and did not in any way discuss the terms of any plea agreement with him.
Kashamu claims that his recent efforts to obtain a visa from Germany constitute further evidence of the United States government’s bad faith. Kashamu Motion at 6. The government, however, to the undersigned attorney’s knowledge, has never withdrawn its warrant against Kashamu. The charges as to Kashamu remain pending. Any errors by Germany as to Kashamu were not motivated or prompted by ill will from the United States government and Kashamu cannot now fairly construe his correspondence with Germany as evidence of governmental bad faith.
The government will, upon request by the Court, if necessary in connection with this motion, provide the Court with details concerning the information Kashamu presented. The government will also inform the Court of Kashamu’s information at the appropriate time as a matter in mitigation should Kashamu ever be convicted and thereafter sentenced by this Court.
The government notes that Kashamu communicated with German officials using the name “Buruji Kashamu Shodipe.” See Exs. D1 and D2 to Kashamu’s Motion. Kashamu was indicted under the name “Buruji Kashamu” and the warrant against him was issued in that same name. Any confusion by German officials may have been caused by Kashamu’s use of the surname “Shodipe” in his communications with them.
PATRICK J. FITZGERALD
United States Attorney
By:/ s/ Diane MacArthur
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604