CHICAGO (CN) – A Nigerian man wanted on drug charges in the United States could still face extradition though a British magistrate released him years ago for lack of evidence, the 7th Circuit ruled.
Buruji Kashamu was one of 14 people charged with conspiracy to import and distribute heroin in May 1998. But investigators could not locate Kashamu, who also indicted under the aliases “Alaji” and “Kasmal.”
As each of Kashamu’s alleged co-conspirators were convicted, Kashamu surfaced in England and was arrested at the request of the U.S. Justice Department.
But getting Kashamu extradited proved challenging. Two individuals cooperating with U.S. prosecutors could not identify a recent picture of Kashamu from a photo array. Though the government later added the affidavits of two women who identified his photo and voice from a phone recording, the British magistrate remained unconvinced.
Kashamu in turn claimed that he was an informant for the Nigerian drug enforcement agency and had a brother who looked remarkably like him who is a drug trafficker. He submitted letters from the Nigerian agency attesting to his informant status. Meanwhile, the U.S. government submitted evidence from the same agency denying that he was an informant.
The magistrate ultimately determined that prosecutors had not presented enough evidence that Kashamu was “Alaji Kashamu” and ordered him released.
Kashamu left England and is believed to now reside in his home country of Nigeria.
In February 2009, Kashamu asked a Chicago federal judge to dismiss the indictment against him, arguing that the English magistrate’s ruling entitled him to collateral estoppel.
“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,” Judge Richard Posner explained.
“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.”
U.S. District Judge Charles Norgle denied the motion and the 7th Circuit affirmed.
Posner said this case marks an exception to the policy of federal courts to generally respect the decisions of foreign judges, “provided that the [ruling] does not offend U.S. policy.”
The three-judge appellate said the British proceedings do not affect the merits of the indictment against Kashamu because the magistrate overstepped his narrow duty solely to determine probable cause.
“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),” Posner wrote. “That 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?”
If Kashamu is located, an extradition request will be made so that he can stand trial in Chicago.