He goes by many names like Esho Jinadu, Ola Shamu, Wole Adeosun,
Kasmal, Bukas Kasmal, Nacoil, Seicb Benin among Esho Jinadu. In
Nigeria today, especially among the political class, he is also known
as Prince Buruji Kasamu.
He is about losing his control of the People’s Democratic Party (PDP)
in the South-Western part of Nigeri and he appears ready to fight
dirty.
Today, he placed a full page advert in some national dailies,
advertising his financial contributions to the PDP.
Few weeks ago, a three man panel of justices at the Court of Appeal,
Lagos Division, had set aside an order of perpetual injunction granted
in favour of a Buruji Kashamu by Justice Okechukwu Okeke (rtd.) of the
Federal High Court.
The order restrained the Attorney–General of the Federation from
taking any steps under Section 6(2) of the Extradition Act for the
arrest, committal or surrender of Kashamu at the instance of the
United States (U.S.) Government.
The Appeal Court further vacated an order of perpetual injunction
restraining the Attorney-General of the Federation from entertaining
or making any order whatsoever in respect of any request by the U.S.
Government for the surrender of the applicant in respect of the said
alleged drug- related offences.
The unanimous decision of court setting aside the said orders was
delivered by Justice Ibrahim Saulawa and was supported by Justices
Joseph Ikyegh and Chinwe Iyizoba respectively.
Dissatisfied with the judgment to extradite him to the United States,
Kashamu has already appealed the decision, to the Supreme Court urging
the apex court to set aside the judgment.
The fraud called Buruji Kasamu
Esho Jinadu Lisord (aka Buruji Kasamu) is a native of Ijebu Igbo in
Ogun State. While growing up at Ijebu-Igbo, he was said to have stolen
a wrist watch in the mosque. He was to later become a driver to one
‘Double Chief’, a notorious 419 kingpin. That was where Esho Jinadu
learnt his ropes, and became a drug pusher later.
His sudden wealth then gave rise to Jinson Motors on Allen, which was
raided by the National Drug Law Enforcement Agency (NDLEA) under the
headship of Musa Bamaiyi in 1984/85 but he escaped from NDLEA
detention cell and fled to Benin Republic.
In 1998, he was caught in London by the British Police over
money-laundering and drug-trafficking offences. He was detained at
London’s Heathrow Airport with large amount of hard currency including
six passports of different nationalities in his possession.
Through a standard name check, the British Customs authorities found
out that there was an outstanding US warrant for his arrest on
narcotics trafficking charges, his street drug trafficking name at
that time was Kasmal. He was therefore detained, prosecuted and
sentenced to 15 years imprisonment.
Besides these, which security reports have confirmed, preliminary
investigations also show that upon his return to Nigeria in 2003,
after serving out a four-year jail term in British prison, he used
Kasmal International Limited to dupe a new generation bank to the tune
of $4.1 million through a fraudulent letter of credit. It was then
said that he took loans with a deliberate attempt not to pay back.
At a point, a warrant of arrest was issued against him in Britain for
money laundering over a case involving Vitol. In the Vitol case,
Kasamu, after receiving a consignment of petroleum products from the
company abroad, sold them all, collected all the money only to accuse
Vitol of supplying adulterated products. Based on this false claim, he
refused to pay the company.
In 2010, controversy whether or not Buruji Kashamu is a drug baron and
fugitive from the United States law broke out in the Nigerian press,
with a section of the Nigerian media reporting in late 2009 that a
certain 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 his
(Kashamu) 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
claimed 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, the United States government insisted 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.
It was also reported that the U.S further has never withdrawn its
warrant of arrest against Kashamu and that the charges against him
(Kashamu) remained pending and will request for his extradition from
Nigeria in due course.
The United States Government also accused Buruji Kashamu of using
fraudulent means to obtain a German Visa in 2009. The U.S government
noteed 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.
Obviously, 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 co-conspirators
had been jailed, Kashamu’s case is being held under the fugitive
Calendar.
Curiously, however, in February, 2009, Kashamu, who had earlier
claimed 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, 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.
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.
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.
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
