SAHARA REPORTERS
– The controversy whether or not millionaire politician, self acclaimed
philanthropist and Nigeria’s newest “Godfather”, Alhaji Buruji Kashamu
is a drug baron and fugitive from the United States law has been on in
the Nigerian press for the past few months. A section of the Nigerian
media had reported late year that that Alhaji Kashamu’s name came up in a
recent Court ruling dated September 25, 2009 by Judge Charles R. Norgle
of the United States District Court in Chicago, Illinois in which the
Judge upheld Kashamu’s indictment by the U.S government on drug
trafficking charges and conspiracy to smuggle heroin into the country.
Kashamu was described by the U.S government as the kingpin of the drug
cartel.
In quick response, Kashamu published several rebuttals in the
newspapers and alleged that he was not the one being sought after by the
United States Government, but that the alleged crime was committed by
one of his brother who is now late. Kashamu, in his defense, also claims
that he had been cleared by a British Court and produced what purports
to be the decision of a Magistrate Court in England. Kashamu also
referred to his recent issuance of German visa sequel to his clearance
by international security agencies as a further proof that he is not a
fugitive and that the U.S may have been looking for a wrong person.
However, from Saharareporters’s investigation, it appears that the
matter is far from being over as the United States government insists
that the man the U.S government is looking for is no other person than
Buruji Kashamu, not his brother and that the government of the U.S still
regards Buruji Kashamu as a drug kingpin and a fugitive from the United
States law. The U.S further states that it has never withdrawn its
warrant of arrest against Kashamu maintaining further that the charges
as to Kashamu remains pending and will request for his extradition from
Nigeria in due course.
The United States Government has also accused Buruji Kashamu of using
fraudulent means to obtain a German Visa in 2009. The U.S government
notes in its brief that Kashamu communicated with German officials using
the name “Buruji Kashamu Shodipe” instead of Buruji Kashamu. According
to the U.S government, Kashamu was indicted in the United States under
the name “Buruji Kashamu” and the warrant of arrest against him was
issued in that same name. It is the position of the U.S that any
confusion by German officials that led to the issuance of a Schengen
visa to Kashamu may have been caused by Kashamu’s use of the surname
“Shodipe” in his application and communications with the German
consulate.
Saharareporters investigation has revealed that there is indeed, a
pending criminal action against Mr. Buruji before the United States
District Court, Northern District of Illinois involving fifteen people.
The Case 1:94-cr-00172 is before Hon. Judge Charles R. Norgle. While
Kashamu’s other coconspirators had been jailed, Kashamu’s case is being
held under the fugitive Calendar.
Curiously, however, in February, 2009, Kashamu hired a team of
lawyers to appear for him in the case for the purpose of filing a Motion
requesting the Court to quash the arrest warrant which his lawyers led
by Pravin B. Rao did.
In the Motion to quash the arrest warrant, Mr. Pravin Rao made copious
reference to the United Kingdom’s extradition proceedings in which
Kashamu was freed after spending five years in British jail. His lawyers
also pled res judicata and argued that the U.K decisions are final and
should therefore, be binding on the U.S.
In its response, the United States government disagreed with Kashamu
on all fours and argued that Kashamu’s Motion to quash arrest warrant
should be denied by the Court. On September, 25, 2009, the District
Court Judge upheld the U.S position and denied Kashamu’s Motion to quash
his arrest warrant. The judge also declared Buruji Kashamu a fugitive.
However, Kahamu’s lawyers have filed another Motion praying the Court
to reconsider its decision of September 25, 2009. The response of the
U.S government is still being awaited to the Motion but according to the
Department of Justice, the U.S government would file a response to the
motion because Buruji Kashamu has raised fundamental questions in his
motion which the U.S would like to respond to.
The Position of the U.S Government on Buruji Kashamu
In this report, Saharareporters have obtained a copy of the United
States Government’s position on the status of Kashamu Buruji which the
Department of Justice filed court in response to Kashamu’s Motion to
quash arrest warrant. For avoidance of doubt, Saharareporters has
produced the full legal position of the United States position in order
to shed more light into the genesis of this decades old case and exposed
the real issues involved.
US government’s response to defendant Kashamu’s motion to quash warrant and to dismiss indictment
Defendant Buruji Kashamu, a fugitive, has moved to quash the arrest
warrant and to dismiss the charges in the Second Superseding Indictment
against him based on findings made in an extradition proceeding.
Kashamu’s 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.
I. BACKGROUND
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. Id. 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.” Id.
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.
II. ARGUMENT
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.” Id. 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.
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.
Respectfully submitted,
PATRICK J. FITZGERALD
United States Attorney
By:/ s/ Diane MacArthur
DIANE MacARTHUR
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-5352
This report was first posted on Jan, 07 2010
