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Buruji Kashamu Loses Collateral Estoppel Indictment Challenge

By Robyn Hagan Cain on September 06, 2011 | Last updated on March 21, 2019

Doppelgangers, aliases, and evil lookalikes wreak havoc not just in movies, but in real life courts as well. This case is the proof.

This week, the Seventh Circuit Court of Appeals was forced to weed through a U.K. magistrate judge's frolic into the issue of whether a defendant or his similar-looking brother was the evil criminal mastermind to determine if the defendant's indictment should be dismissed on the grounds of collateral estoppel issue.

Buruji Kashamu was one of fourteen persons charged in May 1998 with conspiracy to import and distribute heroin in a Chicago federal grand jury indictment. He was indicted both in his own name and under what the government believed to be two aliases that he used: "Alaji" and "Kasmal."

Kashamu, howver, 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 the U.S. government's request. Justice Department lawyers, working with their British counterparts, sought his extradition to the United States to stand trial. A U.K. magistrate judge decided not to extradite him because, among other reasons, he could not rule out the possibility that Kashamu's lookalike brother was the real Alaji. Kashamu was allowed to return to Nigeria.

Kashamu filed a motion in the district court in Chicago in 2009 to dismiss the indictment against him on the ground that the English magistrate had found that he was not "Alaji." He argued that the finding should be given collateral estoppel effect in the American 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.

The Seventh Circuit Court of Appeals agreed with the district judge that the denial of extradition was not the same as an acquittal, and found that the U.K. magistrate judge's decision did not give way to collateral estoppel in the indictment against Buruji Kashamu.

Do you agree with this Seventh Circuit Court of Appeals decision? Will denying collateral estoppel to extradition denial cases, such as this one, produce unintended comity consequences?

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