In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2782
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B URUJI K ASHAMU,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:94-cr-00172-15—Charles R. Norgle, Sr., Judge.
A RGUED M AY 2, 2011—D ECIDED S EPTEMBER 1, 2011
Before P OSNER, K ANNE, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. This appeal requires us to con-
sider the collateral estoppel effect, if any, of findings
made by foreign courts in extradition proceedings. Back
in May 1998 defendant Kashamu was one of fourteen
persons charged in an indictment returned by a federal
grand jury in Chicago with conspiracy to import and
distribute heroin in violation of 21 U.S.C. § 963. He was
indicted both in his own name and under what the gov-
2 No. 10-2782
ernment believed to be two aliases that he used: “Alaji”
and “Kasmal.” But he could not be found. He had not
been arrested; he did not jump bail; his whereabouts
simply were unknown. The government did not ask that
he be tried in absentia. The case proceeded against the
other defendants (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 our government’s request. Justice Depart-
ment lawyers, working with their English counterparts,
sought his extradition to the United States to stand trial.
For reasons irrelevant to this appeal, extradition pro-
ceedings were incredibly protracted, ending finally in
January 2003 when the presiding judge (a “district judge,”
though more like a U.S. magistrate judge than a U.S.
district judge, cf. S.H. Bailey et al., Smith, Bailey & Gunn
on the Modern English Legal System §§ 2-021, 4-013, pp. 65,
233 (4th ed. 2002), and often referred to as a magistrate,
as we will refer to him in this opinion) decided not
to order him extradited. A Nigerian citizen, he left
England and is believed to be back in Nigeria.
In February 2009 he filed a motion in the district court
in Chicago to dismiss the indictment against him on the
ground that the English magistrate had found that
he was not “Alaji” and the finding should be given collat-
eral estoppel effect in the criminal proceeding and that
if this was done he could not be convicted and
therefore shouldn’t have to stand trial. The district
judge denied the motion, precipitating this appeal.
The government argues that we have no jurisdiction
because a finding made in an extradition proceeding
No. 10-2782 3
can never be given collateral estoppel effect and so clear
is this that Kashamu’s challenge to the denial of his
motion to dismiss the indictment should not be deemed
even “colorable.” An appeal that is not colorable—that
is frivolous—should simply be dismissed.
The challenge to the indictment may be sound or un-
sound, but, as we’re about to see, it’s not frivolous. And
although the order appealed from—the denial of a
motion to dismiss an indictment on collateral estoppel
grounds—is not a final order (the criminal proceeding
initiated by the indictment remains pending in the
district court), it is appealable under the collateral order
doctrine. Kashamu is asserting a right not just not to
be convicted, but not to be tried, and such a right would
be lost forever if review were postponed until final judg-
ment. See Abney v. United States, 431 U.S. 651, 658-60
(1977); United States v. Patterson, 782 F.2d 68, 72 n. 7 (7th
Cir. 1986).
Normally, it is true, the denial of a motion to dismiss
an indictment cannot be appealed immediately if the
ground of the motion can be reasserted if and when the
defendant is convicted, as in such cases as Midland
Asphalt Corp. v. United States, 489 U.S. 794, 799-800 (1989);
United States v. Hollywood Motor Car Co., 458 U.S. 263, 265-
67 (1982) (per curiam), and United States v. MacDonald,
435 U.S. 850, 855-57 (1978). But there is an exception
when the ground is double jeopardy, as held in Abney
and noted in the other cases we just cited, because the
double jeopardy clause protects a defendant against
being retried, and not just against being convicted—and
the double jeopardy clause has been held to incorporate
4 No. 10-2782
the doctrine of collateral estoppel. Yeager v. United States,
129 S. Ct. 2360, 2366-67 (2009); Dowling v. United
States, 493 U.S. 342, 347 (1990); Ashe v. Swenson, 397 U.S.
436, 445-46 (1970); United States v. Patterson, supra, 782
F.2d at 72 n. 7.
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, which has an extra-
dition treaty with the United States by virtue of the
Extradition Treaty between the United States of America
and Great Britain, Dec. 22, 1931, 47 Stat. 2122. For
article 16, 47 Stat. 2126, extends the treaty (which is
applicable to drug offenses, see art. 3(24), 47 Stat. 2112) to
British protectorates, as Nigeria once was; and after
becoming independent Nigeria continued the treaty in
force. Congressional Research Service, “Extradition to
and from the United States: Overview of the Law and
Recent Treaties,” p. 39 (2010), www.fas.org/sgp/crs/misc/
98-958.pdf (visited Aug. 29, 2011); see United Nations,
“Succession of States in Respect of Bilateral Treaties:
Study Prepared by the Secretariat,” 2 Yearbook of the
International Law Commission, 1970, pp. 102, 113 (1972),
h t tp ://u nt re a t y.u n . o r g / il c / p u b l i c a t io n s / y e a r b o o k s /
Ybkvolumes%28e%29/ILC_1970_v2_e.pdf (visited Aug. 29,
2011). If the United States succeeds in extraditing
Kashamu it will put him on trial, and even if he is ac-
quitted he will have lost a right that he claims the col-
lateral estoppel doctrine gives him.
No. 10-2782 5
There is an analogy to the right to appeal, under the
collateral order doctrine, a denial of a motion made
before trial to dismiss a suit on grounds of official im-
munity. Such a denial is an interlocutory order. But the
immunity is to the burdens of suit and not just to an
award of damages, and those burdens would not be
avoided if the defendant had to wait to challenge the
denial of immunity until a final judgment against him
was entered. Mitchell v. Forsyth, 472 U.S. 511, 525-30
(1985); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989).
We haven’t been told whether our government has
yet tried to extradite Kashamu from Nigeria. And we
don’t know what weight another country would give
the U.K.’s decision not to extradite him. (Nigeria might
give it conclusive weight—or might not—but in either
event he may not want to remain in Nigeria.) All that
matters is that if his defense of collateral estoppel is
sound, it not only is a defense to the criminal charge
against him but also protects him from extradition, the
immediate sequel to which would be a criminal trial.
So we have appellate jurisdiction and turn to the ques-
tion whether it is true as the government argues that a
ruling rejecting a request for extradition can never have
collateral estoppel effect. Ordinarily the preclusive
effect of a judicial order is determined under the law of
the jurisdiction that issued the order, but that is by
virtue of the Constitution’s full faith and credit clause
and its implementing statute. 28 U.S.C. § 1738; see Migra
v. Warren City School District Board of Education, 465 U.S.
75, 80-81 (1984); Czarniecki v. City of Chicago, 633 F.3d
545, 548 n. 3 (7th Cir. 2011). When the order is issued by
6 No. 10-2782
a foreign court, a domestic court is not bound by the
full faith and credit clause or statute to comply with
the foreign jurisdiction’s preclusion rules.
So what should the domestic court (in this case the
federal district court in Chicago) do? There is no consen-
sus. Robert C. Casad, “Issue Preclusion and Foreign
Country Judgments: Whose Law?,” 70 Iowa L. Rev. 53, 56-
57 (1984); see, e.g., Hurst v. Socialist People’s Libyan
Arab Jamahiriya, 474 F. Supp. 2d 19, 32-33 (D.D.C. 2007);
Alfadda v. Fenn, 966 F. Supp. 1317, 1328-30 (S.D.N.Y.
1997); Watts v. Swiss Bank Corp., 265 N.E.2d 739, 742
(N.Y. 1970); Restatement (Third) of Foreign Relations Law
§ 481 comment c (1987); Restatement (Second) of Conflict of
Laws § 98 comment f (1971); 18B Charles Alan Wright et al.,
Federal Practice and Procedure § 4473, pp. 398-411 (2d ed.
2002); Arthur T. von Mehren & Donald T. Trautman,
“Recognition of Foreign Adjudications: A Survey and a
Suggested Approach,” 81 Harv. L. Rev. 1601, 1677-81 (1968);
Hans Smit, “International Res Judicata and Collateral
Estoppel in the United States,” 9 UCLA L. Rev. 44, 61-64
(1962). But several cases suggest, sensibly in our view,
that the U.S. court should generally give preclusive
effect to the foreign court’s finding as a matter of comity.
E.g., Diorinou v. Mezitis, 237 F.3d 133, 140, 142 (2d Cir.
2001); Overseas Inns S.A. P.A. v. United States, 911 F.2d
1146, 1148-49 (5th Cir. 1990); see also Hilton v. Guyot,
159 U.S. 113, 205-06 (1895).
Comity is a doctrine of deference based on respect for
the judicial decisions of foreign sovereigns (or of U.S.
states, which are quasi-sovereigns). When the foreign
No. 10-2782 7
judiciary is respected, as in the case of the United King-
dom’s judiciary, and the rule on which the finding
sought to be given preclusive effect is based doesn’t
offend a strong U.S. policy, the federal courts
should defer to that finding. Cf. Griffin v. McCoach, 313
U.S. 498, 506-07 (1941); Spinozzi v. ITT Sheraton Corp., 174
F.3d 842, 846-47 (7th Cir. 1999); Loucks v. Standard Oil
Co., 120 N.E. 198, 201-02 (N.Y. 1918) (Cardozo, J.) (“we
are not so provincial as to say that every solution of a
problem is wrong because we deal with it otherwise at
home”). This suggests that the district court should have
applied the United Kingdom’s concept of collateral
estoppel in deciding what weight to give the ruling of
the English magistrate, provided that concept does not
offend U.S. policy. But we are not sure the suggestion
is correct, given the peculiarity of this case. The English
judiciary had and has very little interest—maybe no
interest—in it. Our government asked England to
extradite a Nigerian who does not, and doubtless has
no right to, reside in England. It would hardly matter to
England whether Kashamu is tried in the United States.
But set that point to one side and assume that we
should apply the English doctrine of collateral estoppel
to this case. The English doctrine (which the English
call “issue estoppel”) is similar to the American, but
there are differences. One is that it cannot be used
against a nonparty to the case in which the determination
sought to be used as an estoppel was rendered. See, e.g.,
Regina v. Hartington Middle Quarter, 4 E&B 780, 794-95, 119
Eng. Rep. 288, 293-94 (Q.B. 1855); Peter R. Barnett, Res
Judicata, Estoppel, and Foreign Judgments 11-20, 133-37
8 No. 10-2782
(2001); Casad, supra, at 62-63. A second and critical one
is that English law does not apply the doctrine to
criminal cases. Regina v. Humphrys, 1977 A.C. 1, 21 (H.L.);
K.R. Handley, Spencer Bower & Handley: Res Judicata § 8.38,
p. 123 (4th ed. 2009). It is true that the Humphrys case
involved a verdict, rather than a judge’s ruling in a
nontrial setting. A jury (or a judge in a bench trial)
might resolve an issue favorably to a criminal defendant
because it was left in doubt whether the particular
point against him had been proved, and such a deter-
mination would be a flimsy basis for using it to preclude
future charges. Regina v. Humphrys, supra, 1977 A.C. at 43-
44. But the treatise we cited doesn’t distinguish
between particular types of ruling; it is emphatic that
“issue estoppels are not recognized in criminal cases.”
Handley, supra, at § 8.38, p. 123.
The English further insist that the ruling sought to be
given preclusive effect be final. Carl Zeiss Stiftung v.
Rayner & Keeler Ltd. (No. 2), 1 A.C. 853, 918 (H.L. 1966);
Nouvion v. Freeman, 15 App. Cas. 1, 8-9 (H.L. 1889); Barnett,
supra, at 16-17; Handley, supra, § 5.01, p. 65. The English
judges have intimated that their determinations
in Kashamu’s extradition hearings (there were two
hearings) were not final. In a 2001 opinion remanding the
matter to the magistrate, the High Court of Justice noted
that “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.” Regina
No. 10-2782 9
(Kashamu) v. Governor of Brixton Prison (D.C.), [2001]
EWHC (Admin) 980, ¶ 33, [2002] Q.B. 887, 900. Similarly,
before concluding on remand that the evidence
identifying Kashamu as Alaji was “so undermined as
to make it incredible and valueless,” the magistrate said
he was “mindful . . . that this is a matter of the credibility
of the identification witnesses which should essentially
remain a matter for a jury.” United States v. Kashamu, at *9-
10 (Bow Street Magistrates’ Court Jan. 10, 2003) (unpub-
lished and unavailable in any reporting service, but
reproduced in full in the appendix to the appellant’s
brief, pp. A-11 to A-20).
And an English treatise states that “if the accused is
discharged by the magistrates at the end of the
committal proceedings this is not the equivalent of an
acquittal at trial. He or she may be charged again with the
same offence, and be required to undergo committal
proceedings again.” S.H. Bailey et al., supra, § 14-071,
p. 958. The treatise is talking about domestic com-
mittals, but the same standard applies to extradition
proceedings—the magistrate determines whether there
would be sufficient evidence to commit the defendant
had the crime taken place in England. Regina (Kashamu)
v. Governor of Brixton Prison (D.C.), supra, [2002] Q.B. at 894.
So the defendant loses under English law even if an
English court would recognize collateral estoppel in a
criminal case. But earlier we expressed doubt whether
the English rule of collateral estoppel should bind us in
this unusual case. Furthermore the parties haven’t men-
tioned the English rule. They have assumed that U.S. law,
10 No. 10-2782
specifically the federal common law rule of collateral
estoppel (the rule applicable when the finding in
question was made by a federal court), governs.
Ordinarily a court will enforce the choice of law rule
selected by the parties, no questions asked, unless they
select a foreign law that would be too difficult for the
federal court to apply; we have given the example of
a stipulation to apply the Code of Hammurabi to a dispute
arising from a contract. Tomic v. Catholic Diocese, 442
F.3d 1036, 1042 (7th Cir. 2006).
So while in the absence of agreement to apply U.S. law
we might apply the foreign law of collateral estoppel
in this case (the “might” reflecting the doubt we
expressed earlier), we shall bow to the parties’ tacit
agreement and decide the case under federal common law.
In that law collateral estoppel is available to defendants
in criminal cases. Ashe v. Swenson, supra, 397 U.S. at 442-44;
United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916)
(Holmes, J.). But the government argues that the rule
cannot apply to extradition determinations because
the rejection of a request for extradition is always pro-
visional—it is not a final order. Eain v. Wilkes, 641 F.2d
504, 508 (7th Cir. 1981); In re Mackin, 668 F.2d 122, 129-
30 (2d Cir. 1981) (Friendly, J.). It is like a magistrate’s
ruling that there isn’t probable cause to hold a person
whom the police have arrested; the person goes free
but can be rearrested. Fed. R. Crim. P. 5.1(f). Likewise,
when a request for extradition is denied, the prosecutors
can renew the request (they may have obtained additional
evidence), United States ex rel. Rutz v. Levy, 268 U.S. 390,
No. 10-2782 11
393 (1925); DeSilva v. DiLeonardi, 181 F.3d 865, 868 (7th
Cir. 1999); In re Mackin, supra, 668 F.2d at 128; Hooker v.
Klein, 573 F.2d 1360, 1367-68 (9th Cir. 1978); the extradi-
tion proceeding is deemed not to have placed the de-
fendant in jeopardy. And when a person sought to be
extradited has moved from the country that first denied
extradition to another country, there is nothing in U.S.
law to prevent our prosecutors from asking that country
to extradite him—which is not to say that the country
will grant the request. Nicaragua’s code of criminal
procedure, for example, states that if extradition is
denied on the merits, a future request is barred, Código
Procesal Penal de la República de Nicaragua, art. 359
(2001), though we don’t know whether Nicaragua would
give preclusive effect to the denial of extradition by a
foreign country—and we have no idea whether Nigeria
has a similar rule.
But the lack of finality of a denial of extradition is
not conclusive of whether the denial should be given
collateral estoppel effect. In Lummus Co. v. Commonwealth
Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961) (Friendly, J.),
we read that “whether a judgment, not ‘final’ in the
sense of 28 U.S.C. § 1291, ought nevertheless be con-
sidered ‘final’ in the sense of precluding further litiga-
tion of the same issue, turns upon such factors as the
nature of the decision (i.e., that it was not avowedly
tentative), the adequacy of the hearing, and the opportu-
nity for review. ‘Finality’ in the context here relevant
may mean little more than that the litigation of a
particular issue has reached such a stage that a court sees
no really good reason for permitting it to be litigated
12 No. 10-2782
again.” We likewise have said that “a final judgment is
not an absolute requirement of collateral estoppel.
Another way to put this, though it comes to the same
thing, is that finality has a different meaning when the
issue is appealability and when the issue is collateral
estoppel, or in rare cases res judicata.” Amcast Industrial
Corp. v. Detrex Corp., 45 F.3d 155, 159 (7th Cir. 1995); see
also Miller Brewing Co. v. Joseph Schlitz Brewing Co., 605
F.2d 990, 996 (7th Cir. 1979); Restatement (Second) of Judg-
ments § 13 and comments b, g (1982).
Ordinarily an attempt to give collateral estoppel effect
to a finding made in a hearing on a request for extradi-
tion would be blocked because that hearing, like a pre-
liminary hearing for an arrested person, would not
have been full and fair (particularly not full), as the
doctrine of collateral estoppel requires. As under the
English law of domestic committals, the government
could re-arrest the suspect and present additional
evidence at the second preliminary hearing that would
ensue. Charlton v. Kelly, 229 U.S. 447, 458-62 (1913);
Romeo v. Roache, 820 F.2d 540, 543-44 (1st Cir. 1987) (per
curiam); Messina v. United States, 728 F.2d 77, 80 (2d Cir.
1984); Hooker v. Klein, supra, 573 F.2d at 1368; Snider v.
Divittis, No. 3:07-0335, 2008 WL 681058, at *3 (S.D. W. Va.
Mar. 10, 2008), rev’d on other grounds under the name
Snider v. Seung Lee, 584 F.3d 193 (4th Cir. 2009). But
while extradition hearings, like preliminary hearings, are
normally summary, they aren’t always—they weren’t
in this case. Collins v. Loisel, 262 U.S. 426, 430 (1923)
(Brandeis, J.), held that while “discharge . . . on the first
petition for habeas corpus . . . does not operate as res
No. 10-2782 13
judicata . . . a judgment in habeas corpus proceedings
discharging a prisoner held for preliminary examination
may operate as res judicata . . . that he was at the time
illegally in custody, and of the issues of law and
fact necessarily involved in that result.” This holding is
authority for regarding findings made in extradition
hearings as eligible to be given collateral estoppel effect,
at least in special circumstances—so let us consider
whether such circumstances are present in this case.
Kashamu’s codefendants who had pleaded guilty
had admitted their participation in the charged con-
spiracy and identified “Alaji” as the leader of the con-
spiracy. Two of them identified Kashamu as Alaji in
a photographic lineup, and in the extradition pro-
ceeding the government submitted their affidavits to
that effect. The government also pointed out that when
arrested upon arrival in England Kashamu had been
carrying approximately $230,000.
On the basis of this evidence the magistrate initially
ordered him extradited. But our government had
failed (apparently because of a misunderstanding of
what our extradition treaty with the U.K. requires in
the way of evidence relating to a request for extradition)
to reveal that a photograph of him taken after his arrest
had been placed in a second photo array and one of
the two cooperating defendants who had identified
Kashamu as Alaji on the basis of the earlier array could not
identify him from the photograph. A third cooperating
defendant, who had not viewed the initial photo array,
also could not identify the new photograph of Kashamu
14 No. 10-2782
as being that of Alaji. These failures of identification,
brought to the attention of the High Court of Justice
when Kashamu sought habeas corpus, led that court to
order Kashamu released.
But before he was released—indeed, before the court
issued its opinion—our government obtained a new
arrest warrant and instituted a second extradition pro-
ceeding before the same magistrate. In the new pro-
ceeding the government supplemented its evidence
that Kashamu was Alaji by affidavits from two
women who knew him, and who separately identified
him from the second photo and also identified his voice
on a recording of a phone conversation. Kashamu
argued in defense of his claim of mistaken identity that
he was an informant for the Nigerian drug enforce-
ment agency, and for Interpol in another African
country (Benin), and that he had a brother who looked re-
markably like him—and was a drug trafficker. Kashamu
submitted letters from the Nigerian agency attesting to
his informant status—and our government submitted
evidence from the same agency denying that he was
an informant. His evidence was supplemented by oral
testimony from Nigerian drug enforcement officials and
an Interpol official.
The magistrate found that Kashamu did have a brother
who bore a “striking resemblance” to him and that
Kashamu was indeed an informant for the Nigerian
drug enforcement agency and Interpol, and it was these
findings that persuaded him that the identification evi-
dence submitted by our government was “incredible
No. 10-2782 15
and valueless.” So he ordered Kashamu released from
custody. The government did not seek another arrest
warrant.
Our government had not presented enough evidence
to convince the English magistrate that Kashamu was
Alaji, but Kashamu had not presented enough evidence
to convince the magistrate that he was not Alaji. The
only findings that the magistrate made that could
possibly be entitled to collateral estoppel effect in a trial
of Kashamu for participation in the drug conspiracy
were that Kashamu had a brother who bore a striking
resemblance to him, the brother was a member of the
conspiracy that the government thinks was led by
Kashamu, Kashamu had given information about the
conspiracy to Interpol and Nigerian law enforcers, and
contrary to what our government believed the brother
had not died in 1989. These findings if admissible
would bolster his defense but would not require an
acquittal, and thus would not require the dismissal of the
indictment. A reasonable jury might find that Kashamu
had exploited the resemblance to his brother to create
doubt about his (Kashamu’s) being Alaji; that the
brother was another conspirator but Kashamu was the
leader; that maybe both were the leaders, like Roman
Consuls; that maybe the brother was sole leader but
Kashamu was a follower like the other defendants; and
that Kashamu had given information to Interpol and
the Nigerian authorities to throw them off the scent (it
was not disclosed in the extradition hearing whether
this information assisted the U.S. government’s investi-
gation that culminated in the indictment). In light of
16 No. 10-2782
these possibilities the magistrate was quite right not to
find that Kashamu wasn’t Alaji.
But we go further: we don’t think that even the
findings that the magistrate did make would have col-
lateral estoppel effect in a trial of Kashamu. The actual
ruling was that the evidence the prosecutors had
presented would not have been sufficient to justify
Kashamu’s committal for trial had the crime of which he
was accused been committed in England. The English
standard for committal is whether there is “sufficient
evidence to put [the] accused on trial for any indictable
offense.” Criminal Procedure and Investigations Act
1996, c. 25, § 47 and schedule 1, § 4. That is akin to
the probable-cause standard applicable in preliminary
hearings in the United States. See Williams v. Kobel, 789
F.2d 463, 468-69 (7th Cir. 1986). The question whether a
jury would convict Kashamu in a trial in which all the
evidence bearing on his guilt would be presented is
different from whether a judge would find probable
cause on the basis of a much scantier record to believe
that he had committed the charged offense. If for ex-
ample the finding that Kashamu and his brother bear
a striking resemblance to each other were given col-
lateral estoppel effect, then in a trial in the United States
the prosecution would not be permitted to contest the
proposition that they bear a striking resemblance to
each other. But the determination that the government
hadn’t presented credible evidence in the extradition
proceeding that Kashamu is Alaji would have no weight
in such a trial because the prosecution would be entitled
to put in more and different evidence, just as prosecutors
No. 10-2782 17
present more evidence at a trial than at a preliminary
hearing.
We don’t think it could be doubted that there was
probable cause to commit Kashamu for trial (and for
that matter probable cause to believe he’s Alaji—for he
may well be, and that is enough to establish probable
cause). The magistrate turned what would normally
have been a summary proceeding to determine probable
cause into a trial of who is more likely to be Alaji,
Kashamu or his brother? Suppose a judge presiding at
a probable cause hearing in the United States said not
only was there no probable cause to arrest the suspect
but he was innocent of the crime the government has
charged him with committing. The finding of innocence
would have no preclusive effect because it would have
been unnecessary to the ruling on probable cause—just
as the magistrate’s finding that Kashamu has a brother
to whom he bears a striking resemblance was unneces-
sary to his ruling that there was insufficient evidence
to warrant Kashamu’s committal for the charged of-
fenses. All that was necessary for the denial of extradition
was the magistrate’s determination that he had been given
insufficient evidence to satisfy him that Kashamu was
Alaji—not his finding that the two brothers look alike (or
his other findings which we mentioned), though that
finding supported his determination.
Only findings that are necessary to a court’s decision
(in this case as in our hypothetical case of a decision
quashing an arrest) are entitled to preclusive effect. Bobby
v. Bies, 129 S. Ct. 2145, 2152-53 (2009) (quoting Restatement
18 No. 10-2782
(Second) of Judgments, supra, § 27 and comment h); United
States v. Kimberlin, 805 F.2d 210, 232 (7th Cir. 1986). For
if they are not necessary, neither party has an incentive
to challenge them in the litigation in which they are
made. Moore v. Mahone, No. 09-3515, 2011 WL 2739771, at
*1 (7th Cir. July 15, 2011); Amoco Oil Co. v. Johnstone, 856
F.2d 967, 969 (7th Cir. 1988); Commercial Associates v.
Tilcon Gammino, Inc., 998 F.2d 1092, 1097 (1st Cir. 1993);
Wickham Contracting Co. v. Board of Education, 715 F.2d
21, 28 (2d Cir. 1983).
For all these reasons, the order of the district court
denying the motion to dismiss the indictment is
A FFIRMED.
9-1-11