In re Liuksila, Magistrate No. 13-970 (DAR)

133 F.Supp.3d 249

In the Matter of the Extradition of Aarno Olavi Liuksila

Magistrate No. 13-970 (DAR)

United States District Court, District of Columbia.

Signed January 5, 2016

Filed January 6, 2016

Mervin Arthur Bourne, Jr., U.S. Attorney's Office for the District of Columbia, Washington, DC, for Plaintiff.

Richard Ben-Veniste, Mayer Brown LLP, Michelle M. Peterson, Federal Public Defender for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

DEBORAH A. ROBINSON, United States Magistrate Judge

This matter is before the court on the United States' request on behalf of the government of Finland, pursuant to 18 U.S.C. § 3184, to certify the extraditability of Defendant Aarno Liuksila. Criminal Complaint (Document No. 1). The court filed a Memorandum Opinion on November 7, 2014 denying Defendant's Motion to Dismiss the Criminal Complaint and Deny Finland's Extradition Request (Document No. 15). See In re Liuksila , 74 F.Supp.3d 4 (D.D.C.2014). Defendant subsequently filed a Motion to Stay Enforcement of Any Extradition Order Pending Petition for Habeas Relief (Document No. 29) and a Motion for Reconsideration (Document No. 35), both of which are pending for the court's consideration. The court conducted a hearing on February 4, 2015 and heard argument with regard to Defendant's Motion for Reconsideration. Upon consideration of the parties' written memoranda, the evidence admitted, the arguments made by counsel on the record at the hearings, and the entire record herein, the court will deny Defendant's motions and will certify Defendant's extraditability.

BACKGROUND

Defendant is sought by the Finnish government to answer charges pending in Finland that arise out of certain housing shares that he owned, which the government alleges were "distrained" in 2001 to cover Defendant's debts. See Document No. 1-2. After a hearing on Defendant's extradition to Finland, which concluded on April 28, 2014,¹ and upon consideration of the written submissions, the court denied Defendant's Motion to Dismiss the Criminal Complaint and Deny Finland's Extradition Request (Document No. 15) by a Memorandum Opinion (Document No. 27) filed on November 2, 2014. See In re Liuksila , 74 F.Supp.3d 4. After filing the November 7, 2014 Memorandum Opinion, the court had not yet certified Defendant's extradition to Finland when he filed both a Motion to Stay Enforcement of Any Extradition Order Pending Petition for Habeas Relief ("Defendant's Motion to Stay") (Document No. 29) and a Motion for Reconsideration (Document No. 35). Subsequently, the court scheduled oral argument with regard to Defendant's Motion for Reconsideration (Document No. 35), which was conducted on February 4, 2015.² See 12/22/2014 Minute Entry; 02/04/2015 Minute Entry.

Defendant argues, through written submissions (Document Nos. 35, 40) and oral proffer at the February 4, 2015 hearing, that the court erred in its decision to extradite Defendant to Finland for the reasons set forth in the November 7, 2014 Memorandum Opinion. Defendant argues that the applicable statute of limitations has run with regard to the charges with which he has been charged in Finland. See Defendant's Memorandum in Support of His Motion for Reconsideration ("Defendant's Memorandum") (Document No. 35-1) at 6-7. Therefore, the court should have denied Finland's extradition request. Id. At the core of his contention, Defendant takes issue with the court's reliance on the "mere absence" standard as articulated in McGowen v. United States , 105 F.2d 791 (D.C.Cir.1939). Id. at 2; see also In re Liuksila ,74 F.Supp.3d at 14–15. In McGowen, the Circuit held that a criminal defendant's "mere absence" from a jurisdiction is sufficient enough to toll the applicable statute of limitations with regard to the crime(s) with which he or she has been charged. 105 F.2d 791. Defendant contends that the facts of the present case are sufficiently distinguishable from McGowen to justify a departure from the law established therein. In support of this contention, Defendant states:

This Circuit has never previously applied a mere absence tolling standard where, as here, (1) an individual affirmatively notified the relevant authorities of his intention to leave the jurisdiction prior to his travel and the authorities facilitated his departure, (2) the relevant authorities were at all times aware of the individual's whereabouts and had the ability to immediately commence criminal proceedings, and (3) the individual maintained regular contact with the relevant authorities following his departure and voluntarily cooperated with their requests. These facts should be deemed to preclude tolling under 18 U.S.C. § 3290, even assuming that McGowen is good law in this Circuit.

Defendant's Memorandum (Document No. 35-1) at 3. Moreover, Defendant avers that his contention is supported by new evidence in the form of a sworn affidavit from Finnish Detective Inspector Kirsi Alaspää. See Defendant's Liuksila's Reply in Support of His Motion for Reconsideration ("Defendant's Reply") (Document No. 40) at 7-9.³ With regard to the affidavit, Defendant represents:

The affidavit, filed for the first time on December 23, 2014, eviscerates any suggestion that [Defendant] bears the fault for the Finnish authorities' delay in prosecution. Specifically, Detective Inspector Alaspää swears that [Defendant] called her on May 8, 2006, after he was contacted by U.S. law enforcement authorities regarding a request for an interview. According to the Detective Inspector, [Defendant] initiated the contact and indicated his willingness to "take care of the matter" during a possible midsummer family vacation to Finland. Over subsequent email and telephone conversations through June, [Defendant] indicated that the family's travel plans were "more or less uncertain." Rather than deal with this uncertainty, the Finnish police opted to have [Defendant] interviewed in Washington, D.C. [Defendant] voluntarily complied with this interview request. Thus, the affidavit demonstrates that (a) [Defendant] voluntarily contacted the Finnish authorities, (b) Finnish police maintained direct contact with [Defendant] over a matter of months, and (c) [Defendant] repeatedly affirmed both his whereabouts and his willingness to cooperate. Despite these affirmations, however, the Finnish police never requested that [Defendant] return to Finland. And most importantly, they failed to bring any charges against him until October 2007, well after the five-year U.S. statute of limitations had expired.

Defendant's Reply (Document No. 40) at 7-8 (internal citations omitted). Defendant states further that this affidavit was not available to him when the court made its original determination and that its very presence now justifies the court's reconsideration of his case. Id. at 5, 9. All in all, Defendant contends that Detective Inspector Alaspää's affidavit bolsters his argument that the circumstances surrounding his extradition are analogous to the factual circumstances as presented in United States v. Singleton , 702 F.2d 1159 (D.C.Cir.1983), rather than McGowen. Id. at 8–9. Defendant contends that he remained "readily accessible" to the Finnish authorities and, therefore, the statute of limitations should not have been tolled as contemplated by the McGowen"mere absence" standard. Id. Thus, barring his extradition at this juncture. Id. Moreover, Defendant avers that this court's initial analysis of Singleton and its application to the present factual scenario was too narrow. In so doing, Defendant contends that Singleton and McGowen actually present conflicting conclusions, warranting a reinterpretation the respective authorities. Defendant concludes, therefore, that a more expansive reading of Singleton along Defendant's own innocent intentions with regard to his failure to return to Finland should lead the court to find that the statute of limitations should not have been tolled under the instant circumstances.

Alternatively, Defendant argues that the Court erred in tolling the statute of limitation in "failing to require that the Government prove its allegations supporting tolling by a preponderance of the evidence." Defendant's Memorandum (Document No. 35-1) at 3. Defendant contends that in so doing, "the Government ducked its evidentiary burden by relying on a Finnish court judgment, which in turn relied solely on the Justice Department's own unsupported representation that [Defendant] had been served." Id. This deprives Defendant "of his right under the Treaty to have the Government's tolling evidence under the Finnish statute independently evaluated by a neutral arbiter in the United States." Id.

As an additional alternative, Defendant argues that the application of the mere presence standard would violate "his [constitutional] right to engage in interstate and international travel for lawful purposes." Defendant's Reply (Document No. 40) at 9. Specifically, Defendant notes:

[U]nder the Court's interpretation of McGowen, an accused may only enjoy the protection of a statute of limitations (and thereby ensure his right to a fair and timely trial) by remaining inside the physical boundary of a single jurisdiction for the entire limitations period. In other words, the accused is forced to abandon his Fifth Amendment right to travel for legitimate (non-evasive) purposes in order to preserve the protections of the statute of limitations. This Hobson's choice, in which the accused can either exercise his right to travel or his right to a fair trial—but not both—violates the Due Process Clause of the Fifth Amendment.

Id. at 10. Defendant argues further that such restrictions would be archaic in nature and utterly unrealistic given every day circumstances that may cause one to leave a particular jurisdiction, without the intent to flee prosecution.

Lastly, Defendant requests that in the even the court certifies his extradition to Finland, his current bail status, personal recognizance, be continued...