Submitted August 18, 2014
Petition for Writ of Mandamus to the Northern District of Illinois, Eastern Division. No. 94 CR 172-15 -- Charles R. Norgle, Judge.
For Buruji Kashamu, Petitioner: Charles B. Sklarsky, Attorney, Kara Kapp, Attorney, Barry Levenstam, Attorney, Robert R. Stauffer, Attorney, Jenner & Block Llp, Chicago, IL; Scott J. Frankel, Attorney, Frankel & Cohen, Chicago, IL.
For United States of America, Party-in-Interest: Debra Riggs Bonamici, Attorney, Diane MacArthur, Attorney, Office of The United States Attorney, Chicago, IL.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge.
The petition for mandamus that is before us is the sequel to an appeal we decided three years ago in a litigation that began sixteen years ago. For it was in May 1998 that Buruji Kashamu, a dual citizen of Nigeria and Benin, was charged in an indictment returned by a federal grand jury in Chicago, along with thirteen other persons, with conspiracy to import heroin into the United States and distribute it, in violation of 21 U.S.C. § 963.
The government believed that Kashamu was the leader of the conspirators. He was indicted both in his own name and under what the government believed to be two aliases that he used: " Alaji" (the principal alias, the government thought) and " Kasmal." So far as appeared, Kashamu had never entered the United States, and his current whereabouts were unknown. The government did not ask that he be tried in absentia. Eleven of the other defendants pleaded guilty, one proceeded to trial and was convicted, and another could not be found and remains a fugitive.
Several months after the indictment came down, Kashamu showed up 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. There were two extradition proceedings, both unsuccessful, ending finally in January 2003 when the presiding judge refused to order him extradited. He had been detained throughout the extradition proceedings. As soon as the judge ruled, Kashamu left England for Nigeria, where he remains.
Six years later he filed a motion in the district court in Chicago to dismiss the indictment on the basis of findings that the English judge had made in refusing to order him extradited. The key findings were that Kashamu had a brother named Alaji who bore a " striking" resemblance to him, that the brother had been a member of the drug conspiracy being prosecuted in Chicago, and that Kashamu had informed on his brother and other co-conspirators. As we noted in our opinion ruling on the appeal from the district court's denial of the motion, " 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." United States v. Kashamu, 656 F.3d 679, 687 (7th Cir. 2011).
Kashamu contended in his 2009 motion that these findings should be given collateral estoppel effect in the criminal proceeding and that if this was done he couldn't be convicted and therefore shouldn't have to stand trial. We disagreed. The English judge had not found that Kashamu had not used the name " Alaji" as an alias. All he found was that
the government had presented insufficient evidence to satisfy him that Kashamu was Alaji. One couldn't predict from that finding (or the corollary findings listed in the preceding paragraph of this opinion) that Kashamu would or should be acquitted if tried in federal district court on the charges in the indictment. There was a good deal of evidence against him. We noted in our previous opinion that among other bits of evidence " Kashamu's codefendants who had pleaded guilty had admitted their participation in the charged conspiracy and identified 'Alaji' as the leader of the conspiracy. Two of them identified Kashamu as Alaji in a photographic lineup, and in the extradition proceeding the government submitted their affidavits ...