Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:94-cr-00172-15-Charles R. Norgle, Sr., Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, KANNE, and TINDER, Circuit Judges.
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 gov- ernment 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 (except for one who like Kashamu could not be found), 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. For reasons irrelevant to this appeal, extradition proceedings were incredibly protracted, ending finally in January 2003 when the presiding judge (a "district judge," though more like a U.S. magistrate judge than a U.S. district judge, cf. S.H. Bailey et al., Smith, Bailey & Gunn on the Modern English Legal System §§ 2-021, 4-013, pp. 65, 233 (4th ed. 2002), and often referred to as a magistrate, as we will refer to him in this opinion) decided not to order him extradited. A Nigerian citizen, he left England and is believed to be back in Nigeria.
In February 2009 he 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 un-sound, 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); United States v. Patterson, 782 F.2d 68, 72 n. 7 (7th Cir. 1986).
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); United States v. Hollywood Motor Car Co., 458 U.S. 263, 265-67 (1982) (per curiam), and United States v. MacDonald, 435 U.S. 850, 855-57 (1978). But there is an exception when the ground is double jeopardy, as held in Abney and noted in the other cases we just cited, because the double jeopardy clause protects a defendant against being retried, and not just against being convicted-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); Dowling v. United States, 493 U.S. 342, 347 (1990); Ashe v. Swenson, 397 U.S. 436, 445-46 (1970); United States v. Patterson, supra, 782 F.2d at 72 n. 7.
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-including the United Kingdom, despite the denial of the previous request for extradition, and, of more immediate moment, Nigeria, which has an extra-dition treaty with the United States by virtue of the Extradition Treaty between the United States of America and Great Britain, Dec. 22, 1931, 47 Stat. 2122. For article 16, 47 Stat. 2126, extends the treaty (which is applicable to drug offenses, see art. 3(24), 47 Stat. 2112) to British protectorates, as Nigeria once was; and after becoming independent Nigeria continued the treaty in force. Congressional Research Service, "Extradition to and from the United States: Overview of the Law and Recent Treaties," p. 39 (2010), www.fas.org/sgp/crs/misc/ 98-958.pdf (visited Aug. 29, 2011); see United Nations, "Succession of States in Respect of Bilateral Treaties: Study Prepared by the Secretariat," 2 Yearbook of the International Law Commission, 1970, pp. 102, 113 (1972), http://untreaty.un.org/ilc/pu blications/yearbooks/ Ybkvolumes%28e%29/ILC_1970_v2_e.pdf (visited Aug. 29, 2011). 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. But the immunity is to the burdens of suit and not just to an award of damages, and those burdens would not be avoided if the defendant had to wait to challenge the denial of immunity until a final judgment against him was entered. Mitchell v. Forsyth, 472 U.S. 511, 525-30 (1985); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989).
We haven't been told whether our government has yet tried to extradite Kashamu from Nigeria. And we don't know what weight another country would give the U.K.'s decision not to extradite him. (Nigeria might give it conclusive weight-or might not-but in either event he may not want to remain in Nigeria.) All that matters is that if his defense of collateral estoppel is sound, it not only is a defense to the criminal charge against him but also protects him from extradition, the immediate sequel to which would be a criminal trial.
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; see Migra v. Warren City School District Board of Education, 465 U.S. 75, 80-81 (1984); Czarniecki v. City of Chicago, 633 F.3d 545, 548 n. 3 (7th Cir. 2011). 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. Robert C. Casad, "Issue Preclusion and Foreign Country Judgments: Whose Law?," 70 Iowa L. Rev. 53, 56-57 (1984); see, e.g., Hurst v. Socialist People's Libyan Arab Jamahiriya, 474 F. Supp. 2d 19, 32-33 (D.D.C. 2007); Alfadda v. Fenn, 966 F. Supp. 1317,1328-30 (S.D.N.Y. 1997); Watts v. Swiss Bank Corp., 265 N.E.2d 739, 742 (N.Y. 1970); Restatement (Third) of Foreign Relations Law § 481 comment c (1987); Restatement (Second) of Conflict of Laws § 98 comment f (1971); 18B Charles Alan Wright et al., Federal Practice and Procedure § 4473, pp. 398-411 (2d ed. 2002); Arthur T. von Mehren & Donald T. Trautman, "Recognition of Foreign Adjudications: A Survey and a Suggested Approach," 81 Harv. L. Rev. 1601, 1677-81 (1968); Hans Smit, "International Res Judicata and Collateral Estoppel in the United States," 9 UCLA L. Rev. 44, 61-64 (1962). But several cases suggest, sensibly in our view, that the U.S. court should generally give ...