United States District Court, D. Columbia
IN THE MATTER OF THE EXTRADITION OF AARNO OLAVI LIUKSILA
AARNO OLAVI LIUKSILA, Defendant: Michelle M. Peterson, LEAD
ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC;
Richard Ben-Veniste, MAYER BROWN LLP, Washington, DC.
USA, Plaintiff: Mervin Arthur Bourne, Jr., LEAD ATTORNEY,
U.S. ATORNEY'S OFFICE DISTRICT OF COLUMBIA Felony Major
Crimes, Washington, DC.
A. ROBINSON, United States Magistrate Judge.
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, 2014 WL
5795244 (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
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, 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, 2014 WL 5795244.
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. See 12/22/2014 Minute Entry;
02/04/2015 Minute Entry.
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 4, 2014 WL 5795244, at
*8. 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
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
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.a
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 Alaspä ä . See Defendant's
Liuksila's Reply in Support of His Motion for
Reconsideration (" Defendant's Reply" )
(Document No. 40) at 7-9. With regard to the affidavit,
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 Alaspä ä 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.
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 Alaspä ä '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, 226 U.S.App.D.C. 445 (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.
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 ...