THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE MATTER OF THE EXTRADITION Magistrate No. 13-970 (DAR) OF AARNO OLAVI LIUKSILA

MEMORANDUM OPINION

This matter is before the court on the United States’ request on behalf of the government

of Finland, pursuant to

, 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, Magistrate No. 13-970,

(D.D.C. Nov. 7, 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 In re Liuksila 2

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,

.

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

1 The court conducted four previous hearings with regard to Defendant’s extradition. See 01/13/2014 Minute Entry; 01/16/2014 Minute Entry; 01/22/2014 Minute Entry; and 01/23/2014 Minute Entry; see also In Re Liuksila,

. 2 At a status hearing conducted on December 22, 2014, the court granted in part Defendant’s Motion to Stay (Document No. 29), based on the agreement of the parties that Defendant’s bail status on personal recognizance should be continued. See 12/22/2014 Minute Order. With regard to the remainder of Defendant’s Motion to Stay, Defendant initially contended that a stay of enforcement of any extradition order from this court was warranted pending his petition for habeas relief, given that “[Defendant’s] case presents close questions of law on which he is likely to prevail.” See Defendant’s Motion to Stay at 1. However, the Government, in its response to Defendant’s Motion to Stay, contended that staying the current proceedings pending habeas review is superfluous, given the statutory safeguards and procedures as contemplated by Congress with regard to extradition matters, essentially providing the stay that Defendant sought. See Government’s Memorandum Opposing Fugitive’s Motion to Stay Certification Order (“Government’s Opposition to Stay”) (Document No. 32) at 2-4. In light of the Government’s assurances, Defendant voluntarily withdrew his argument in favor of a stay of the proceedings before the court pending the outcome of his habeas petition. See Defendant’s Reply in Support of His Motion for Stay and Continuation of His Bail Status (Document No. 34) at 2. Therefore, Defendant’s Motion for Stay (Document No. 29) is hereby denied as moot. In re Liuksila 3

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.

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,

(D.C. Cir. 1939). Id. at 2; see also In re Liuksila,

. 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.

. 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

, 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:

3 The court notes, that at the February 4, 2015 hearing, Defendant offered the affidavit of Detective Inspector Alspää into evidence as Defense Exhibit 1, without objection from the Government. Additionally, the Government entered into evidence what has been labeled as Government’s Exhibit 1, which consists of a photocopy of two sides of a United States Postal Service confirmation of service card. The Government represented that Government’s Exhibit In re Liuksila 4

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.

. 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,

(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

1 accompanied the affidavit of Detective Inspector Alspää and out of an abundance of caution, needed to be brought to the attention of both Defendant and the court. The court permitted the Government to enter this exhibit into evidence, over the objection of counsel for Defendant. In re Liuksila 5

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. In re Liuksila 6

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 during the pendency of habeas

corpus proceedings. Id. at 14. In support of this request Defendant notes (1) none of the

circumstances that supported the court’s initial grant of bail have changed; (2) Defendant has

demonstrated his amenability to these bail conditions by his continued compliance; (3)

Defendant poses no risk of flight; and (4) Defendant is 71 years-old, owns a home in the District

of Columbia, and has surrendered his passport per the court’s instructions. Id. at 15-16.

Therefore, taking all of these factors under consideration, Defendant contends that a continuation

of his current bail status is warranted. Id.

The Government presents several counter arguments with regard to Defendant’s

contentions. First, the Government contends that Defendant has failed to meet his burden with

regard to reconsideration by this court. See Government’s Opposition to Defendant’s Motion to

Reconsider (“Government’s Opposition”) (Document No. 37) at 1. Specifically, the Government

avers that this court should deny Defendant’s Motion for Reconsideration “because there is no

injustice that would result from the court’s ruling,” as contemplated by the applicable authorities.

Id. at 1-2; see also Loumiet v. United States, Civil Action No. 12-1130,

(D.D.C. August 21, 2014). With regard to McGowen, the Government avers that Defendant

concedes that McGowen and the “mere absence rule” are still binding authorities upon this

jurisdiction. Moreover, given such a concession, Defendant’s argument for reconsideration is

without merit. In support of this contention, the Government states: In re Liuksila 7

All of the facts which [Defendant] uses to support its arguments for reconsideration, namely, that 1) [Defendant] did not hide the fact that he was leaving Finland from various parts of the Finnish “government”, 2) “Finnish authorities” were aware of [Defendant’s] U.S. location, and 3) [Defendant] had multiple contacts with the Finnish embassy while living in the U.S., are facts which the court considered prior to its ruling. Moreover, they are not facts that are relevant to this motion, especially in light of the fact that [Defendant’s] intent to flee was not the controlling issue in the court’s decision.

Government’s Opposition (Document No. 37) at 3 (internal citations omitted). Moving to the

applicable authority, the Government contends that “the defense has cited no controlling or

significant change in the law, or the facts of this case since the submission of the issues to the

Court.”

Moreover, the Government states that “[t]he court’s decision in McGowen is still the

controlling decision” and that the court should “decline to extend reconsideration on this

inappropriate basis” as supported by Defendant.

The Government further avers that the facts of the instant case are not sufficiently

distinguishable from McGowen to justify a departure from that established authority. Id. at 3-4.

In support, the Government notes that (1) like McGowen, Defendant voluntarily absconded from

the jurisdiction after committing a crime; and (2) as established by McGowen, Defendant became

a “person fleeing from justice” simply upon absconding, regardless of his state of mind. Id.

With regard to the affidavit of the Finnish Detective Inspector, the Government contends that the

affidavit, if anything, shows a great deal of vacillation on the part of Defendant, in that he

originally indicated that he would return to Finland, and then backed away from that declaration

with the passage of time. The Government contends that this “cat-and-mouse” type of approach

as employed by Defendant only bolsters the argument that he was in fact fleeing prosecution,

rather than conspicuously availing himself to the requests of the Finnish authorities as Defendant

represents. The Government counters Defendant’s contention that McGowen and Singleton In re Liuksila 8

produce inherently contradictory results that warrant a reinterpretation of the authorities. The

Government argues that the “mere absence rule” as presented McGowen is applicable to factual

scenarios in which a defendant, after having committed a crime, physically absconds from a

particular jurisdiction, thus tolling the applicable statute of limitations. The Government argues

that McGowen presents a general rule of sorts when it comes to a determination of a defendant’s

fugitivity. That being said, the Government contends that Singleton is applicable to factual

scenarios in which a defendant has not physically absconded from a particular jurisdiction, but

could, nonetheless, take measures to avoid prosecution, even while physically remaining in the

jurisdiction. Such circumstances warrant consideration of different factors, specifically, the

defendant’s intentions in order to determine whether the statute of limitations should be tolled.

Second, the Government avers this court correctly determined in its Memorandum

Opinion that there is sufficient evidence to show that the Finnish government did in fact serve

Defendant with a summons to appear before the District Court of Turku to answer for the

charges brought against him in that jurisdiction, thus tolling the statute of limitations as of June

26, 2009. See Government’s Opposition (Document No. 37) at 4; see also In re Liuksila,

. The Government avers that this court was not obligated, as Defendant

argues, to consider additional evidence in determining whether Defendant was served, as the

evidence considered was properly authenticated and certified in accordance with the applicable

authorities. See Government’s Opposition (Document No. 37) at 5-7. Therefore, the

Government concludes that Defendant’s argument in this regard is also without merit.

Lastly, the Government requests that the court change the conditions of Defendant’s

release from personal recognizance to the High Intensity Supervision Program to include GPS

monitoring in the event that the court certifies Defendant’s extradition. In support, the In re Liuksila 9

Government contends that such certification would present a substantial change in circumstances

sufficient enough to warrant the imposition of additional measures to ensure Defendant’s future

appearances.

APPLICABLE STANDARD

Motion for Reconsideration of Interlocutory Decisions

“Although the Federal Rules do not specifically provide for motions for reconsideration

in criminal cases, the Supreme Court has recognized, in dicta, the utility of such motions.”

United States v. Ferguson,

(D.D.C. 2008). This Court has adopted such

a philosophy by regularly entertaining motions for reconsideration in a criminal context,

applying the analogous Federal Rules of Civil Procedure. See United States v. Sunia, 643

F.Supp 2d 51, 60-61 (D.D.C. 2009) (applying analysis presented by Fed. R. Civ. P. 54(b) to

criminal defendants’ motion to reconsider partial denial of motion to dismiss); see also United

States v. Booker,

(D.D.C. 2009) (applying analysis presented by Fed. R.

Civ. P. 59(e) to criminal defendant’s motion for reconsideration of decision denying a motion to

vacate the conviction under

; see also United States v. Slough, Criminal No. 08-

360, Criminal No. 14-107,

, at *2 (D.D.C. July 29, 2014) (applying Fed. R.

Civ. P. 54(b) to criminal defendants’ motion for reconsideration of decision excluding

testimony).

That being said, “[t]he standard of review for interlocutory decisions differs from the

standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b).”

Williams v. Savage,

(D.D.C. 2008). “Federal Rule of Civil Procedure

54(b) . . . permits a district court to revise an order ‘that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties’—i.e. an interlocutory order—‘at any time In re Liuksila 10

before the entry of a judgment adjudicating all the claims and all the parties' rights and

liabilities.’” Slough,

, at *2 (quoting Fed. R. Civ. P. 54(b). “In particular,

reconsideration of an interlocutory decision is available under the standard, ‘as justice requires.’”

Judicial Watch v. Dep’t of Army,

(D.D.C. 2006). “Considerations a

court may take into account under this standard include whether the court ‘patently’

misunderstood a party, made a decision beyond the adversarial issues presented to the court,

made an error in failing to consider controlling decisions or data, or whether a controlling or

significant change in the law or facts has occurred since the submission of the issue to the Court.

Loumiet,

(internal citations omitted). “In this Circuit, it is well-

established that ‘motions for reconsideration,’ whatever their procedural basis, cannot be used as

‘an opportunity to reargue facts and theories upon which a court has already ruled, nor as a

vehicle for presenting theories or arguments that could have been advanced earlier.’”

(internal citations omitted). “In order for justice to require reconsideration, logically, it must be

the case that, some sort of ‘injustice’ will result if reconsideration is refused. That is, the movant

must demonstrate that some harm, legal or at least tangible, would flow from a denial of

reconsideration.” Cobel v. Norton,

(D.D.C. 2005). Moreover, “even if

the appropriate legal standard does not indicate that reconsideration is warranted, the Court may

nevertheless elect to grant a motion for reconsideration if there are other good reasons for doing

so.”

With regard to the instant case, it appears that the court’s decision denying Defendant’s

Motion to Dismiss as presented in In re Liuksila, is interlocutory in nature, given that the court’s

certification of Defendant’s extradition is only the first proceeding of several that could

ultimately culminate in Defendant’s extradition to Finland. This court’s decision did not present In re Liuksila 11

the finality contemplated by Rules 59 and 60 of the Federal Rules of Civil Procedure, therefore,

the court’s analysis will continue within the confines of Rule 54 of the Federal Rules of Civil

Procedure and the applicable standard. The court notes that the parties, while omitting

discussion of motions to reconsider in a criminal context, nevertheless, appear to have correctly

ascertained interlocutory nature of the court’s decision based the authorities presented in their

submissions and on the record at the February 4, 2015 hearing. See, e.g., Defendant’s Motion for

Reconsideration (Document No. 35) at 4; Government’s Opposition (Document No. 37) at 1-2.

DISCUSSION

The Court Correctly Applied McGowen in Tolling the Statute of Limitations

As discussed at length above, in summation, Defendant, in his Motion for

Reconsideration, challenges the court’s application of McGowen v. United States in deciding to

toll the applicable statute of limitations as discussed its Memorandum Opinion (Document No.

15) filed on November 7, 2015. Defendant contends that the court erroneously applied the “mere

absence rule” as established by the McGowen Court, when it was obligated to consider additional

factors as presented in United States v. Singleton. Defendant avers that the “as justice requires”

standard has been met, thus warranting reconsideration by the court. However, the court is not

inclined to agree. As conceded, by Defendant, both in his written submissions and by oral

proffer, McGowen v. United States is still the controlling authority in this jurisdiction.

Moreover, to the knowledge of the court, there has been no recent decision overturning

McGowen, therefore, it is still applicable to the instant case. The McGowen Court, in addressing

the particular issue presented here, explains:

To be a fugitive from justice, in the sense of the act of congress regulating the subject under consideration, it is not necessary that the party charged should have left the state in which the crime is In re Liuksila 12

alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that having within a state committed that which by laws constitutes a crime, when he is sought to be subject to its criminal process to answer for his offence, he has left its jurisdiction, and is found within the territory of another. The Supreme Court first used that language with regard to the extradition law, but afterwards expressly applied it to the statute here involved. Accordingly appellant, when he left the District after committing forgery, was a person fleeing from justice, regardless of his motive in leaving.

(emphasis added) (internal citations and quotation marks omitted). Using this

logic, the McGowen Court found that the applicable statute of limitations as applied to the

defendant was tolled.

The factual scenario as presented in McGowen is analogous to the instant

case. Simply put, Defendant, like the defendant in McGowen, voluntarily absconded from the

jurisdiction after committing a crime therein. Thus, in accordance with the established authority,

the statute of limitations must be tolled in the instant case. With regard to Singleton, the factual

scenario as presented there provides a nuance to the overall discussion of tolling the applicable

standard of limitations. The Singleton Court, addressed the issue of

and “whether

one who does not physically flee the jurisdiction can be a fugitive from justice in the sense

contemplated by this section,” an issue of first impression for this Circuit.

, 1168-

69. In relevant part, the Singleton Court states:

We agree that flight from the jurisdiction is not required to trigger the tolling provision. It would be neither logical nor supportive of the policy underlying section 3290 to interpret the law in such a way that one who leaves and is found without the jurisdiction is “fleeing justice” regardless of his intent, while one who actively evades authorities and conceals himself within the jurisdiction can receive the benefit of the statute of limitations.

(footnote omitted). Here, the Singleton Court provided a nuanced discussion as to the issue of

tolling, given that the Singleton defendant had not physically left the jurisdiction, a clear distinction

from McGowen.

However, as the Singleton Court noted, one could certainly seek to avoid In re Liuksila 13

prosecution and flee from justice even while physically remaining in a jurisdiction.

Applying

the McGowen approach in such a circumstance would provide a defendant with unjust benefits

with regard to the statute of limitations. Therefore, the Singleton Court was obligated to consider

the defendant’s intentions in its determination of whether the statute of limitations should have

been tolled. As the court previously explained, “[t]he [Singleton] Court did not revisit the

McGowen Court's holding, concluding that it was ‘unnecessary ... to decide whether the rule of

law set forth in th[o]se early cases—that mere absence from the jurisdiction is sufficient to toll the

statute—retains its vitality today.’” In re Liuksila,

(internal citation

omitted). In the instant case, the facts surrounding the Defendant’s applicable statute of

limitations, like McGowen, are unequivocally distinguishable from those as presented in Singleton.

Therefore, Defendant is not entitled to the same analysis as applied by the Singleton Court. As to

the new evidence presented at the February 4, 2015 hearing, the court is not convinced that it has

any bearing with regard to the court’s decision here. As explained in detail in the November 7,

2015 Memorandum Opinion, Defendant’s mere absence from Finland was sufficient enough to

toll the statute of limitations in accordance with the applicable authorities. Inquiry into Defendants

alleged intentions are, therefore, wholly unnecessary. The court finds that reconsideration is not

warranted “as justice requires.” Furthermore, the court is not convinced that Defendant will not

suffer an injustice due to the court’s decision. For those reasons the court will uphold its previous

ruling and deny Defendant’s Motion for Reconsideration.

Defendant’s Bail Status

Having considered the arguments and proffers from both parties regarding Defendant’s

bail status, the court is inclined to continue defendant’s current bail status on personal

recognizance. While the court is aware that its ruling presents a change in circumstances for In re Liuksila 14

Defendant, it is not convinced, however, that it presents such a change warranting increased

supervision. The court has observed Defendant’s continued appearance at his proceedings before

this court as well as his continued compliance with his release conditions. In the interest of

providing the least restrictive means to ensure his appearance, such factors must weigh heavily

upon the court’s consideration. For those reasons, the court will continue Defendant’s current bail

status on personal recognizance pending the resolution of his habeas proceedings.

CONCLUSION

For the reason set forth herein, Defendant’s Motion for Reconsideration (Document No.

35) will be denied and the court will certify Mr. Liuksila’s extraditability as to the charge of

aggravated fraud by a debtor. A separate order and certificate of extraditability accompanies this

Memorandum Opinion.

/s/_____________ DEBORAH A. ROBINSON United States Magistrate Judge

Date: January 5, 2016