In re Extradition of Liuksila

• Decision Date: 07 November 2014
• Docket Number: Magistrate No. 13–970 DAR
• Citation: 74 F.Supp.3d 4
• Parties: In the Matter of the Extradition of Aarno Olavi Liuksila
• Court: U.S. District Court — District of Columbia

74 F.Supp.3d 4

In the Matter of the Extradition of Aarno Olavi Liuksila

Magistrate No. 13–970 DAR

United States District Court, District of Columbia.

Signed November 7, 2014

Michelle M. Peterson, Federal Public Defender For D.C., Richard Ben–Veniste, Mayer Brown LLP, Washington, DC, for Aarno Olavi Liuksila.

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 Mr. Aarno Liuksila. Criminal Complaint (Document No. 1). Mr. Liuksila filed a Motion to Dismiss the Criminal Complaint and Deny Finland's Extradition Request (“Motion”) (Document No. 15) which is also pending for the court's determination. The court conducted hearings with respect to the government's request on January 13, January 16, January 22, and January 23, 2014, and heard argument with respect to Mr. Liuksila's motion to dismiss on April 28, 2014. 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 undersigned will deny Mr. Liuksila's motion and will certify Mr. Liuksila's extraditability.

BACKGROUND

Mr. Liuksila is sought by the Finnish government to answer to charges pending in Finland that arise out of certain housing shares that he owned, which the government alleges were “distrained” in 2001 to cover Mr. Liuksila's debts. See Government Exhibit 2 (filed at Document No. 1–2). On October 23, 2007, a prosecutor in Finland submitted an application for a summons to the District Court in Turku, Finland, charging Mr. Liuksila with aggravated fraud by a debtor, in violation of Section 3 of Chapter 39 of the Criminal Code of Finland, or, in the alternative, with aggravated dishonesty by a debtor in violation of Section 1a of Chapter 39 of the Criminal Code of Finland. Id. Under Finnish law, both offenses are punishable by a term of imprisonment of at least four months and at most four years. Id.

With respect to the first charge, aggravated fraud by a debtor, the government of Finland alleges that during an “enforcement inquiry” in January 2002, after Mr. Liuksila had been served in May 2001 with a “distraint protocol” for the “distraint” of his shares in a housing company in order to cover his debts, Mr. Liuksila “untruthfully announced” that he sold the shares to three corporate entities on January 1, 2000, prior to the distraint. Id.¹ The government of Finland alleges that the sale was “fictitious,” and that Mr. Liuksila “possessed the aforementioned shares....” Id. In support of its allegation that the sale was “fictitious,” the government of Finland proffers that identifiers associated with the purported buyers, such as “business codes” and “trade register numbers,” were included in the bills of sale, but were not assigned to the entities until July 3, 2000, after the date of the purported sale.Id. The government further proffers that “[m]oney [w]as not used in the transactions; instead, FIM 550,000 has been recorded as a debt to Aarno Liuksila or his spouse and FIM 200,000 has been offset against loans to the shareholder. Aarno Liuksila has owned the aforesaid companies, and they have not been engaged in any business activities.” Id.

The government of Finland further alleges that the housing shares at issue “entitle Mr. Liuksila to the possession” of an apartment and a “business premises,” and that Mr. Liuksila rented the apartment to an individual and received rental payment in August 2000, after the date of the purported sale. Id. With respect to the alternative charge, aggravated dishonesty by a debtor, the government of Finland alleges that Mr. Liuksila transferred the housing company shares with knowledge that it “may harm the financial interests of his creditors.” Id.

To provide further context with respect to the enforcement proceeding, Mr. Liuksila submitted an unsworn letter from Dr. Jussi Tapani, Professor of Criminal Law at the University of Turku in Turku, Finland. See Motion Exhibit E (Document No. 15–2). Dr. Tapani describes the process as follows:

A debtor fails to pay a debt to a particular creditor, causing the creditor to seek and obtain a court judgment for the amount of the debt. After the judgment is entered, the district bailiff then convenes the enforcement inquiry, during which the bailiff summons the debtor to the enforcement office led by the senior district bailiff and questions the debtor about what assets may be used to satisfy the creditor's judgment. The debtor's attendance at this proceeding is compulsory (Chapter 3 Section 52–60 Enforcement Code), and the debtor's participation does not generally result in the discharge of his debt or in any other benefit to the debtor.

Id. at 2. Dr. Tapani characterizes the enforcement inquiry as “a somewhat informal proceeding,” and notes that while the debtor is not sworn under oath, the Finnish penal code “criminalizes a debtor's concealment of assets or his provision of misleading information in connection with an enforcement inquiry.” Id. Dr. Tapani advises that following a 2009 decision from the European Court of Human Rights, “the Finnish Supreme Court expressly recognized the right of a debtor subject to an enforcement inquiry to refuse to answer the bailiff's questions in certain situations.” Id.

Following the Finnish prosecutor's October 23, 2007 application for a summons to the District Court in Turku, the District Court issued an order of detention on November 27, 2009, finding that “Mr. Liuksila is upon probable cause suspected of a serious economic offence” and noting that a warrant for his arrest was issued after he was “summoned as a defendant to a court session held on 16 November 2009, where he failed to appear.” Government Exhibit 2. The Court, in its decision, acknowledged that Mr. Liuksila lives in the United States, but found that “there is reason to suspect that the person whose detention is requested will not voluntarily arrive in Finland for the purpose of prosecution.” Id. The prosecutor in Finland subsequently submitted an application to the Finnish Ministry of Justice on December 16, 2009 “propos [ing]” that it request the extradition of Mr. Liuksila.

In February 2010, the Embassy of Finland, on behalf of the Finnish Ministry of Justice, submitted a formal request to the United States Department of State for the extradition of Mr. Liuksila. Government Exhibit 1 (filed at Document No. 1–3); see also Declaration of Samuel W. McDonald (“McDonald Declaration”) ¶ 2. On December 30, 2013, an Assistant United States Attorney swore to a criminal complaint and requested a warrant for Mr. Liuksila, pursuant to 18 U.S.C. § 3184 and the relevant treaty provisions, to effectuate the government of Finland's request for extradition in connection with the pending charges in Finland. Affidavit in Support of Complaint (Document No. 1–1).

APPLICABLE STANDARD

“Through extradition proceedings, one nation turns over custody of a person at the request of another nation, pursuant to a treaty between the two nations.”

Ward v. Rutherford, 921 F.2d 286, 287 (D.C.Cir.1990) (citation omitted); see also 18 U.S.C. § 3184. When the United States is presented with a request for an individual's extradition, this court's role is “to determine whether ‘the evidence [is] sufficient to sustain the charge under the provisions of the proper treaty or convention.’ ” Ward, 921 F.2d at 287 (citing 18 U.S.C. § 3184 ). Thus, this court does not “adjudicat[e] guilt or innocence,” but instead conducts “a preliminary examination to determine whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation.” Id. (citations omitted) (quoting another source) (internal quotation marks omitted); see also id. at 288 (citing Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1888) ). In accordance with the governing statute, if the court determines that the evidence is sufficient, it “shall certify the same, together with a copy of all the testimony taken before [it], to the Secretary of State....” 18 U.S.C. § 3184.

Another member of this court outlined the findings necessary for certification, noting that:

[a]n extradition certification is in order ... where: 1) the judicial officer is authorized to conduct the extradition proceeding; 2) the court has jurisdiction over the fugitive; 3) the applicable treaty is in full force and effect; 4) the crimes for which surrender is requested are covered by the applicable treaty; and 5) there is sufficient evidence to support a finding of probable cause as to each charge for which extradition is sought.

In the Matter of the Extradition of Zhenley Ye Gon, 768 F.Supp.2d 69, 73 (D.D.C.2011) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) ). Upon certification by the court that the person is extraditable, the Secretary of State then determines whether to surrender the individual. See id. at 72.

DISCUSSION

The undersigned admitted into evidence the following exhibits offered by the United States in support of the extradition request, upon finding that they were submitted by the Finnish Ministry of Justice and authenticated in accordance with 18 U.S.C. § 3190 and the relevant treaty provisions:

• Government Exhibit 1 (filed as Document No. 1–3): Verbal Note from the Embassy of Finland to the United States Department of State dated February 22, 2010; Extradition Treaty between the United States and Finland signed on June 11, 1976; Schedule of Offenses appended to the 1976 Treaty; Protocol to the Extradition Treaty between the United States and Finland, signed on December 16, 2004; and Annex to the Protocol

• Government Exhibit 2 (filed as Document No. 1–2): Letter dated February 1, 2010 from the Ministry of Justice of Finland; November 27, 2009 decision by the District Court in Turku, Finland,

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