United States District Court, District of Columbia
P. Mehta United States District Judge.
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.
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'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.
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.
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.
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
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 (1895). McGowen's
mere absence rule arises from a misreading of
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.
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
Alleged Criminal Conduct in Finland
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.
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. It is in this proceeding
that Petitioner is alleged to have lied.
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
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.
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.
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.
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 144-52.
Petitioner's Prosecution and the Request for
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 or herself or another in bankruptcy, enforcement,
debt adjustment or restructuring proceedings 1) conceals his
or her property, 2) reports a liability that is false in full
or in part, or based on a sham transaction, 3) gives other
false or misleading information on a circumstance that is
significant from the point of the view of the creditors, or
4) fails to report a liability.
See Formal Extradition Request at 53. Dishonesty by
a debtor, under Finnish law, criminalizes the following
A debtor who, knowing that due to his/her already existing or
expected financial difficulties his/her act may harm the
financial interests of his/her creditors, 1) destroys his/her
property, 2) gives away or otherwise surrenders his/her
property without acceptable reason, 3) transfers his/her
property abroad in order to place it beyond the reach of
his/her creditors, or 4) increases his/her liabilities
Id. at 54. Both charges carry penalties up to at
least one year of imprisonment. See id. at 36.
seeking extradition, Finland asked the United States to
assist in serving Petitioner with the criminal summons to
appear at a hearing in Finland before the Turku District
Court, located in Turku, Finland. See Finnish
Extradition Application, ECF No. 21-1, at 160. The United
States completed service of the summons by certified mail on
June 26, 2009, and thereafter notified the Finnish
authorities. See Letter from Juhani Korhonen,
Finland Ministry of Justice, ECF No. 21-1, at 82; see
also Certified Mail Postal Receipt, ECF No. 21-2, at 86.
Petitioner did not appear at the hearing in Finland.
See Formal Extradition Request at 37.
Petitioner's absence, the Finnish government requested
extradition pursuant to the U.S.-Finland Extradition Treaty.
See Formal Extradition Request at 35. In December
2013, the United States filed a complaint for arrest and
extradition in this District Court, and a magistrate judge
issued a warrant. See In re Liuksila, 74 F.Supp.3d
at 7. Soon thereafter, American authorities arrested
Petitioner and brought him before this District Court. Resp.
Opp. to Pet.'s Pet. for Habeas, ECF No. 9, at 2.
first appeared before Magistrate Judge Deborah A. Robinson to
contest extradition. There, Petitioner argued that his
extradition would be unlawful under the U.S.-Finland Treaty
because (1) the dual criminality requirement had not been
met, see In re Liuksila, 74 F.Supp.3d at 10, and (2)
the statutes of limitations on the charged offenses had
expired in both Finland and the United States, see
id. at 12-15. Judge Robinson accepted evidence from the
parties and held five hearings from January 13, 2014, through
April 28, 2014, on the extradition. See id. at 6.
She ruled that (1) the dual criminality principle was
satisfied because Petitioner's alleged conduct underlying
the charge of aggravated fraud by a debtor was comparable to
mail and wire fraud in the United States, id. at
9-12, and (2) the statutes of limitations in both countries
had not expired, id. at 12-15. She also found,
however, that the United States did not have an analogous
criminal law prohibiting Petitioner's conduct comprising
the alternative charge of dishonesty by a debtor.
Id. at 12.
Robinson certified Petitioner's extradition on November
7, 2014, and again after Petitioner moved for
reconsideration, on January 5, 2016. See generally
id.; see also In re Liuksila, 133 F.Supp.3d 249
satisfied with the outcome of the extradition proceedings, on
February 12, 2016, Petitioner moved under 28 U.S.C. §
2241 for a Writ of Habeas Corpus. See Pet. Writ of
Habeas Corpus, ECF No. 1. Petitioner and the United States
initially briefed the Petition as if it were a direct appeal
from Judge Robinson's decision, with Petitioner arguing
that she had erred and the United States contending the
opposite. See Initial Briefing, ECF Nos. 7, 9, 10.
approach, however, misconstrued the applicable burdens in a
habeas proceeding. As the court explained in an Order issued
on October 27, 2016, a petition for writ of habeas corpus is
“not a neutral proceeding in which the petitioner and
the State stand on an equal footing.” See
Order, ECF No. 15 (quoting Skaftouros v. United
States, 667 F.3d 144, 158 (2d. Cir. 2011)). Instead, the
magistrate judge's certification is “presumptively
valid, ” thereby requiring the petitioner to
“prove by a preponderance of the evidence that he is
‘in custody in violation of the Constitution or laws or
treaties of the United States.'” Id.
(quoting Skaftourous, 667 F.3d at 158). The court
invited Petitioner to submit additional evidence and asked
the parties to provide supplemental briefing with the
properly allocated burdens in mind. Id. Thereafter,
Petitioner provided supplemental evidence, see Supp.
Appx., ECF No. 24, the parties submitted a joint appendix of
evidence, see Joint Appx. of Parties, ECF No. 21,
and the parties filed supplemental briefing on the writ,
see Parties' Supp. Mems., ECF Nos. 23, 25, 26.
this second round of briefing, this matter remained
effectively stayed for ten months. See Joint Status
Reports, ECF Nos. 29, 37, 42. During that time, at the
court's not-so-subtle prompting, both Petitioner and the
United States attempted to amicably resolve the extradition
request and the pending criminal charges, potentially by way
of a financial resolution with Petitioner's creditors.
Unfortunately, those efforts proved unsuccessful.
court therefore must now resolve the merits of the Petition.
Petitioner essentially reasserts the arguments he presented
to Judge Robinson. He contends that his custodial status and
pending extradition violates the U.S.-Finland Extradition
Treaty for two reasons. First, the principle of dual
criminality is not satisfied. See Pet.'s Supp.
Mem., ECF No. 23 [hereinafter Pet.'s Supp. Mem.], at
10-15. And, second, the Finnish prosecution is ...