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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 442-44United 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. If 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