Liuksila v. Turner

Decision Date26 November 2018
Docket NumberCase No. 16-cv-00229 (APM)
Citation351 F.Supp.3d 166
Parties Aarno Olavi LIUKSILA, Petitioner, v. Robert F. TURNER, Respondent.
CourtU.S. District Court — District of Columbia

A.J. Kramer, Michelle M. Peterson, Federal Public Defender for the District of Columbia, John T. Lewis, Democracy Forward Foundation, Richard Ben-Veniste, Mayer Brown LLP, Washington, DC, for Petitioner.


Amit P. Mehta, United States District Judge


Petitioner Aarno Liuksila is wanted for prosecution in Finland for making false statements during an official government proceeding. He petitions this court for a writ of habeas corpus, arguing that Finland's extradition request does not satisfy two conditions under the Extradition Treaty between the United States and Finland. First, he asserts that the principle of dual criminality is not satisfied, because the crime with which he is charged in Finland is not a crime under any federal or state law in the United States. Second, he maintains that the five-year statute of limitations to prosecute him for a comparable offense in the United States has run, and so too has the Finnish ten-year limitations period. A magistrate judge of this District Court found neither of these arguments compelling and ordered Petitioner's extradition. Petitioner now turns to this court for habeas relief.

For the reasons discussed below, the court denies the writ. Petitioner has failed to establish that the conduct at issue in Finland would not be unlawful if comparable conduct occurred in the United States. Likewise, he has not carried his burden to show that the statute of limitations has expired either in the United States or in Finland. Petitioner therefore cannot avoid extradition—at least before this court.

The court's conclusion comes with a major asterisk, however. When deciding whether the five-year limitations period under U.S. law has expired, the court cannot simply add five years from the date of the alleged offense and compare it against the date on which Finland initiated charges. Rather, it must apply U.S. federal law as written and as judicially interpreted, including for purposes of tolling. The U.S. Code provides that "[n]o statute of limitations shall extend to any person fleeing from justice." 18 U.S.C. § 3290. A nearly 80-year old case from the D.C. Circuit, McGowen v. United States , interprets section 3290's text to mean that the limitations period tolls upon a person's physical departure from the prosecuting jurisdiction, regardless of whether the person intends to evade justice. See 105 F.2d 791, 792 (D.C. Cir. 1939). Under this reading, known as the "mere absence" rule, if a person leaves the prosecuting jurisdiction, even when no prosecution is pending or the person has no reason to believe one is imminent, the limitations period automatically stops running. All that matters is the person departed; the reason why is immaterial.

The unfairness McGowen creates in this case is apparent. Petitioner left Finland within five years of the offense conduct, at a time when there was no prosecution pending nor was one imminent. But no matter. The moment Petitioner left Finland for the United States the United States limitations period for extradition purposes tolled and never restarted because Petitioner never went back to Finland. So, the fact that Finnish authorities waited more than five years to initiate a prosecution provides no protection to Petitioner. His prosecution under U.S. law is timely simply because he left Finland before the five-year period expired, even though it would appear he had no intent to abscond from or evade Finnish prosecution.

The court respectfully submits that the D.C. Circuit should revisit McGowen and the mere absence rule. The decision is problematic for a host of reasons.

First, the mere absence rule conflicts with the plain meaning of 18 U.S.C. § 3290. By using the phrase "fleeing from justice" in the statute ("No statute of limitations shall extend to any person fleeing from justice"), Congress surely meant that a person had to be actively evading prosecution for the limitations period to toll; physical absence for reasons other than evasion cannot be enough.

Second, the Circuit's reading conflicts with Supreme Court precedent. In Streep v. United States , decided in 1895, the Supreme Court interpreted a predecessor of section 3290, which also used the words "fleeing from justice," as requiring flight with the intention of avoiding prosecution. 160 U.S. 128, 133, 16 S.Ct. 244, 40 L.Ed. 365 (1895). McGowen 's mere absence rule arises from a misreading of Streep .

Third, McGowen represents the minority view among the federal appeals courts. Since McGowen , the circuit courts almost uniformly have rejected the mere absence rule and, instead, have held that the limitations period is tolled under section 3290 only if the person absents himself from the jurisdiction in order to avoid prosecution.

Finally, the D.C. Circuit's minority view affects a particularly harsh result in this case. Had Petitioner lived a few miles away in Virginia or Maryland, he would not be subject to extradition, as the Fourth Circuit requires evidence of an intent to evade justice for section 3290 tolling to go into effect. Such disparate application of federal law to an extradition treaty is simply unjust. This court therefore respectfully urges the D.C. Circuit to reconsider and overturn McGowen .

A. Factual Background
1. Alleged Criminal Conduct in Finland

In February 2010, Finland requested the extradition of Petitioner Aarno Liuksila, a Finnish national who lives in Washington, D.C. Finland made this request pursuant to the U.S.-Finland Extradition Treaty and its corresponding Protocol ("the U.S.-Finland Extradition Treaty").See Joint Appx. of Parties, ECF No. 21, Decl. of Samuel W. McDonald, ECF No. 21-2, at 3.

The prosecution for which Petitioner is sought in Finland has no exactly perfect analog in the United States. Petitioner stands accused of making false statements in a "debt enforcement proceeding." Under Finnish law, a Finnish government official, known as a "bailiff," can convene a debt enforcement proceeding to aid in the enforcement of private debts, including by compelling the debtor to identify his assets. See Ltr. from Dr. Jussi Tapani, ECF No. 21-1, at 89.2 It is in this proceeding that Petitioner is alleged to have lied.

Petitioner's prosecution has its roots in a real estate transaction. In 1999, Petitioner bought shares in a Finnish stock holding company that held residential real property. See Aff. from Ephraim Wernick, ECF No. 21-1, at 76. On January 1, 2000, Petitioner purportedly sold his shares in the company. See Formal Extradition Request, ECF No. 21-2 [hereinafter Formal Extradition Request], at 42. The Finnish authorities viewed the sale suspiciously based on a few peculiarities: no money exchanged hands, the trade register numbers and business codes of the buyer were not assigned at the time of sale, and Petitioner continued to collect rent on the property well after the sale. See In re Liuksila , 74 F.Supp.3d 4, 6 (D.D.C. 2014). Based on this evidence, Finnish authorities concluded that the sale was a sham transaction, by which Petitioner simply transferred the real property from one company he controlled to another. Formal Extradition Request at 42 (calling the sale "fictitious").

Why go to the trouble of hiding assets? To put them beyond the reach of his child's mother, say Finnish authorities. Since at least 1999, Petitioner had failed to make ordered child support payments. See Pet.'s Memo. in Support of Petition [hereinafter Pet.'s Mem.], ECF No. 7, at 33 n.13. On February 12, 2001, the Finnish government issued a distraint on Petitioner's shares in the stock holding company to satisfy the child support debt. See Formal Extradition Request at 42. It notified Petitioner of the distraint on May 8, 2001. See id. at 42, 51.

The following year, on January 24, 2002, Petitioner appeared at a debt enforcement proceeding. See id. at 42. During the proceeding, Finnish prosecutors allege, Petitioner misrepresented that he had made a bona fide sale of the stock holding company's shares prior to the distraint, when in truth he had transferred the shares to another company that he controlled. See id.3

Over four years after he testified in the debt enforcement proceeding, in April 2006, Petitioner returned to his home in Washington, D.C., on a permanent basis. See Pet.'s Supplemental App'x, ECF No. 24, Decl. of Liidia Liuksila, ECF No. 24-5, ¶ 9. At the time of his departure from Finland, no criminal charges were pending against Petitioner. And Finnish authorities have not furnished any evidence showing that, when he left Finland, Petitioner had any reason to suspect that any criminal charges were forthcoming.

While in the United States, Petitioner's location was no mystery to U.S. or Finnish authorities. Id. ¶¶ 4, 11–12. He continuously resided with his family—his wife and two daughters—at a known address in Washington, D.C. Id. ¶¶ 4, 10. The Finnish Embassy mailed holiday greetings and invitations to that address, and Petitioner attended multiple events at the Embassy. Id. ¶¶ 4, 11. In 2006, Petitioner sat for an interview with the U.S. Attorney's Office in Washington, D.C., concerning the shares transaction. Interview Memo., ECF No. 21-1, at 144–152.

2. Petitioner's Prosecution and the Request for Extradition

On October 23, 2007, five years and nine months after the debt enforcement proceeding, a Finnish court issued a summons charging Petitioner with two offenses under Finnish law: "aggravated fraud by a debtor" and "dishonesty by a debtor." See Letter from Juhani Korhonen, Finland Ministry of Justice, ECF No. 21-1, at 82; Formal Extradition Request at 53–54. Under the Finnish criminal code, aggravated fraud by a debtor criminalizes the following conduct:

A debtor who, in order to obtain unlawful financial benefit for himself

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2 cases
  • Hassoun v. Searls
    • United States
    • U.S. District Court — Western District of New York
    • 29 Junio 2020
    ...does not find that he has a substantial chance of persuading an appellate court that such a procedure is permissible. Liuksila v. Turner , 351 F. Supp. 3d 166 (D.D.C. 2018), which Respondent cites in his motion papers (see Dkt. 242-1 at 25), is inapposite. Liuksila involved extradition proc......
  • In re Extradition of Pedroza
    • United States
    • U.S. District Court — Southern District of California
    • 4 Febrero 2020
    ...1 [treaty protocol], at 33, ECF No. 1.) The treaty thus contains a dual criminality requirement. (See id.; see also Liuksila v. Turner, 351 F. Supp. 3d 166, 174 (D.D.C. 2018).) "[U]nder the principle of dual criminality, no offense is extraditable unless it is criminal in both jurisdictions......

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