Venckiene v. United States
Venckiene v. United States
Opinion of the Court
The Republic of Lithuania has requested the extradition of Neringa Venckiene pursuant to the Extradition Treaty between the United States and Lithuania to face criminal charges pending against her in her native country. Consistent with the extradition process set forth in
BACKGROUND
I. Request for Extradition and Arrest
On January 26, 2018, the Government filed a Criminal Complaint before Magistrate Judge Weisman requesting that the court issue a warrant for the arrest of Neringa Venckiene in accordance with
1. complicity in committing a criminal act (unlawful collection of information about a person's private life, i.e. , stalking), in violation of Lithuania Criminal Code Article 25;
2. unlawful collection of information about a person's private life, i.e. , stalking, in violation of Lithuania Criminal Code Article 167;
*8523. hindering the activities of a bailiff, in violation of Lithuania Criminal Code Article 231;
4. failure to comply with a court's decision not associated with a penalty, in violation of Lithuanian Criminal Code Article 245;
5. causing physical pain, in violation of Lithuania Criminal Code la0(1); and
6. resistance against a civil servant or a person performing the functions of public administration, in violation of Lithuania Criminal Code Article 286.
(Id. ).
Judge Weisman issued the arrest warrant the same day. (Id. at Dkt. 3). On February 13, 2018, Venckiene was arrested and appeared before Magistrate Judge Rowland. (Id. at Dkt. 9).
II. Proceedings before Magistrate Judge Martin
On February 21, 2018, Magistrate Judge Martin held an extradition hearing and, that same day, issued an Order granting the Government's extradition request and finding the Treaty encompassed the crimes charged, the warrants and documents provided by the Government of Lithuania in support of its request for extradition were properly authenticated, and the commission of two of the crimes charged-"hindering the activities of a judge, prosecutor, pre-trial investigation officer, lawyer, or bailiff" and "resistance against a civil servant or a person performing the functions of public administration for which extradition is sought"-was established by probable cause that would justify commitment for trial if the offense had been committed in the United States. (Id. at Dkt. 14). The Order indicated that the hearing lasted two hours. (Id. ).
On February 23, 2018, Judge Martin issued a Certification and Committal for Extradition, certifying Venckiene as extraditable for the following offenses: hindering the activities of a bailiff, failure to comply with a court's decision not associated with a penalty, causing physical pain, and resistance against a civil servant or a person performing the functions of public administration. (Id. at Dkt. 18). The Certification and Committal also committed Venckiene to the custody of the U.S. Marshals pending the Secretary of State's decision on extradition and surrender. (Id. ). That same day, the Government sent Venckiene's attorney a letter, notifying him of the next steps in the extradition process. (Id. at Dkt. 24-1). The letter also notified Venckiene's counsel that the Secretary may make its decision at any time after Certification, that surrender typically takes place within two months if the extradition request is granted, and that Judge Martin's Certification was not directly appealable but Venckiene could seek limited review of the Certification by filing a habeas petition in the district court. (Id. ). The letter explained further:
If a habeas petition is filed, the Secretary will suspend review of the extradition matter, and will resume review only when and if the district court denies the petition. Consequently, there is no need to obtain any form of stay, provided that the habeas petition has been filed. However, the Secretary will proceed with the decision-making absent such filing.
(Id. ).
On February 26, 2018, the court mailed a copy of the Certification and Committal for Extradition and all documents filed on the docket to the Secretary of State. That same day, Venckiene filed a Motion to Stay certification of the extradition pending the filing and resolution of a habeas petition, stating that she wished to file a habeas petition challenging the court's probable cause findings and, in the alternative, arguing that the offenses charged were subject to the "political offense" exception to *853the Treaty. (Id. at Dkt. 20). The Government objected on the grounds that a stay would not be necessary because the Secretary of State would not issue a warrant until at least 30 days after the entry of the Certification Order, during which time Venckiene could seek habeas relief, thereby automatically suspending the Secretary's review of the extradition matter, or submit additional materials to the Secretary of State for consideration. (Id. at Dkt. 24). On March 7, 2018, Judge Martin denied Venckiene's Motion to Stay. (Id. at Dkt. 25).
Venckiene submitted materials to the Secretary of State but did not file a habeas petition. (Id. at Dkt. 29).
On April 20, 2018, the Secretary of State authorized Venckiene's surrender pursuant to the Treaty. (Id. at Dkt. 29, Ex. A). Venckiene's counsel was notified of the decision by letter dated April 23, 2018. (Id. ). The Secretary did not specify the reasons for its decision in the letter but stated the decision was based on "a review of all pertinent information, including pleadings and filings submitted on behalf of Ms. Venckiene" up to and including April 19, 2018. (Id. ).
On April 25, 2018, Venckiene filed a Motion to Stay Extradition before Judge Martin, requesting that the court stay certification of the extradition order or set a hearing at which she could present additional evidence in support of the requested stay. (Id. at Dkt. 29). The Government opposed the motion, arguing primarily that Venckiene essentially sought a stay of her surrender (not of the court's certification) and that the court no longer had jurisdiction to stay Venckiene's surrender following the Secretary of State's decision. (Id. at Dkt. 31). The Government explained that courts typically only exercised authority to issue a stay in extradition proceedings pursuant to habeas corpus proceedings initiated before the Secretary issued its extradition determination (which did not occur in Venckiene's case) and that the Government knew of no reported case in which the court issued a stay following the Secretary of State's determination. (Id. ).
Venckiene's noticed up her Motion before Judge Martin for May 1, 2018. (Id. at Dkt. 30). Prior to that date, on April 30, 2018, Venckiene filed a Petition for a Writ of Habeas Corpus in this Court. At the May 1 hearing, in light of Venckiene's habeas petition, Judge Martin granted Venckiene's Motion to Stay Extradition only through and including May 10, 2018-the earliest date the matter could be brought before this Court. (Id. at Dkt. 33; see also Dkt. 9).
III. Proceedings before this Court
As stated above, Venckiene filed a Petition for a Writ of Habeas Corpus in this Court on April 30, 2018. (Dkt. 1). The Petition requests that the Court prevent her extradition to Lithuania for the following reasons: the offenses charged fall under the "political offense" exception of the Treaty; the Magistrate Judge erred in finding probable cause existed as to two of the offenses; and the extradition scheme violates due process to the extent the Secretary can make its determination without providing any basis for its ruling. (Id. ).
On May 7, 2018, Venckiene filed a Motion for Extension of Stay to extend the stay issued by Judge Martin until such time that her habeas petition can be heard or, in the alternative, to set a briefing schedule and a hearing date on the requested stay. (Dkt. 9). The Government opposed the Motion on essentially the same grounds it opposed Venckiene's prior motion before Judge Martin: that the Court has no authority to review the substance of the Secretary of State's extradition determination or to review Judge Martin's certification order now that the *854Secretary has made its decision; if the Court has authority to review the Secretary of State's extradition determination, Venckiene cannot show a due process flaw in the U.S. extradition scheme; and if the Court has authority to review Judge Martin's certification order, Venckiene cannot make a strong showing she is likely to succeed on the merits of her habeas petition. (Dkt. 11).
The Court held a hearing on Venckiene's Motion on May 10, 2018 and ordered Petitioner to file a reply in support of her Motion for Extension of Stay. (Dkt. 12). The Court held another hearing on the fully-briefed Motion on June 28, 2018. (Dkt. 26). In response to the Court's questions at the June 28 hearing, Venckiene raised additional arguments in support of her Motion and Petition, including that the Secretary of State allegedly based its determination on a constitutionally impermissible basis and that two Congressmen had introduced separate bills that if passed would prevent Venckiene's extradition until her pending asylum case was heard. (See Dkt. 30). The Court directed Venckiene to present these new arguments in a supplemental brief to the Court. Venckiene filed her supplemental brief on July 5, 2018. (Id. ).
DISCUSSION
In her habeas petition, Venckiene challenges both the Secretary of State's extradition determination and Judge Martin's Order certifying her as extraditable. Venckiene must show first that this Court has authority at this stage to review either ruling. If the Court finds that it can hear Venckiene's habeas petition on either ground, it must then decide whether to stay Venckiene's extradition until such petition is heard. Venckiene also argues that her extradition should be stayed until Congress votes on the two pending bills that would prevent her extradition until her asylum case is heard.
The Court considers four factors in determining whether to grant a stay: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder ,
I. The Secretary of State's Extradition Determination
Title
Under the rule of non-inquiry, the Secretary of State has sole authority to consider other factors such as the requesting state's political motivations, whether the requesting state's justice system is fair, and whether the request should be denied on humanitarian grounds. Eain ,
Accordingly, the Secretary of State's extradition determination is generally not subject to judicial review. See, e.g. , Martin ,
Generally, so long as the United States has not breached a specific promise to an accused regarding his or her extradition and bases its extradition decisions on diplomatic considerations without regard to such constitutionally impermissible factors as race, color, sex, national origin, religion, or political beliefs, and in accordance with such other exceptional constitutional limitations as may exist because of particularly atrocious procedures or punishments employed by the foreign jurisdiction, those decisions will not be disturbed.
Venckiene challenges the constitutionality of the Secretary of State's determination on three grounds. First, Venckiene alleges that the extradition scheme violated her procedural due process rights because the Secretary of State did not specify the basis for its determination. Second, Venckiene alleges that she "is being punished for her political beliefs, e.g. , her criticism of the Lithuanian government and judiciary." (Dkt. 29 at ¶ 13). Third, Venckiene argues that Lithuania employs particularly atrocious procedures inimical to the constitutional protections of the United States. (Id. at ¶ 12). Venckiene raised the second and third grounds for the first time in the supplemental briefing filed after the Court's June 28 hearing.
1. Procedural Due Process
Venckiene's procedural due process claim does not fall within the narrow reviewable categories listed in Matter of Burt because it does not allege that the Secretary of State based its decision on constitutionally impermissible factors, i.e. , her race, sex, or political beliefs, or that Lithuania employs particularly atrocious procedures or punishments. Venckiene does not cite to any case law to support her procedural due process claim or to show that the Secretary of State's determination is subject to such claim.
*857However, there is case law supporting the position that this Court can hear a procedural due process challenge to the Secretary of State's determination. In Matter of Burt , the petitioner alleged that the executive branch violated his due process rights under the Fifth Amendment by filing a complaint to extradite him 15 years after initially deciding not to do so.
In Peroff v. Hylton , the petitioner filed a habeas petition challenging the Secretary of State's decision to grant extradition alleging he was denied due process by the Secretary of State's refusal to conduct a hearing prior to issuing the warrant of extradition.
However, this does not help Venckiene much because both courts also rejected the petitioner's arguments. In Peroff , the petitioner argued that the Secretary of State's exercise of discretion constituted an "administrative determination" and, therefore, that the Secretary violated his right to due process by denying him a "fair hearing" before issuing the warrant of extradition.
Although limited judicial review is available by way of a petition for habeas corpus relief, matters involving extradition have traditionally been entrusted to the broad discretion of the executive. A person facing interstate extradition has no constitutional right to notice or a hearing before the governor who acts upon the extradition request. The need for flexibility in the exercise of Executive discretion is heightened in international extradition proceedings which necessarily implicate the foreign policy interests of the United States. Thus, while Congress has provided that extraditability shall be determined in the first instance by a judge or magistrate, [ ] the ultimate decision to extradite is ordinarily a matter within the exclusive purview of the Executive. Peroff has no statutory right to the hearing he seeks; indeed, agency actions involving "the conduct of ... foreign affairs functions" are expressly exempted from the hearing requirements set out in The Administrative Procedure Act.
The remaining factors under Nken also favor denying a stay. The irreparable harm Venckiene will suffer if the stay is denied is that, as with any person whose stay of extradition is denied, her outstanding legal claims pertaining to extradition would become moot. However, that hardship is lessened by the fact that she still may defend herself before the Lithuania courts. See, e.g. , Artukovic v. Rison ,
Venckiene argues that she also has legitimate concerns for her life and physical safety if she is extradited. However, as explained above, the Secretary of State retains sole discretion over such humanitarian considerations and inquiries into the fairness of the foreign nation's judicial system; the magistrate judge may not consider such factors and the Secretary's decision on those bases is not subject to judicial review. It is also worth noting that this is not a case in which the petitioner faces a lifetime of imprisonment or other serious penalty if convicted upon extradition. Venckiene faces at most three years imprisonment if convicted of the charges pending against her. Although Venckiene claims that she fears for her life, this fear is not a fear that her own Government will kill her but is based instead on threats from outside forces not controlled or under any authority of the Lithuanian government and, therefore, the type of claim more properly brought before an asylum court. Moreover, Venckiene offers only circumstantial evidence of the alleged conspiratorial threat against her. A sovereign nation has the right to weigh the evidence of such claims within its own judicial system, and a United States district court should not intervene with that analysis.
Regardless, irreparable harm alone is not sufficient to justify a stay; Venckiene must also show a likelihood of success on the merits to obtain a stay and she has failed to do here. Nken ,
Finally, the Court looks to the third and fourth factors: harm to the opposing party and the public interest. When the Government is the opposing party, these two factors merge.
Therefore, the remaining factors also favor denying Venckiene's request for a stay. Venckiene bears the burden of establishing the circumstances justify an exercise of the Court's discretion in granting a stay. Nken ,
2. Constitutionally Impermissible Basis
At the June 28 hearing, the Court asked Venckiene's counsel whether the habeas petition included a challenge to the Secretary of State's determination on the basis that the Secretary based its decision on constitutionally impermissible factors, and Venckiene's counsel represented that they would address this argument in a supplemental brief. (Dkt. 30 at 15). In the supplemental brief, Venckiene devotes just one paragraph to this argument and provides no case law in support thereof. Specifically, Venckiene argues that the fact that the Lithuanian government eliminated Venckiene's judicial and parliamentary immunity and initiated the prosecution against her as punishment for exercising what in the United States would be her First Amendment rights is evidence that "Petitioner is being punished for political beliefs, e.g. , her criticism of the Lithuanian government and judiciary." (Dkt. 29 at ¶ 13).
Venckiene's argument is not only underdeveloped but confuses the exception set forth in Matter of Burt and discussed at the June 28 hearing. Pursuant to Matter of Burt , the Secretary of State may not base its extradition determination on constitutionally impermissible factors such as an individual's political beliefs, and the Court has authority to review the Secretary's determination to assess whether such constitutionally impermissible factors played any part in that determination. Venckiene makes no such argument here. Rather, Venckiene's position as set forth in the supplemental brief focuses on the Lithuanian government's basis for its decision to prosecute her. Under the rule of non-inquiry, the Secretary of State retains sole authority to consider Lithuania's political motivations in requesting Venckiene's extradition and such diplomatic considerations are not subject to judicial review. Therefore, the Court has no authority to hear Venckiene's habeas petition on this basis.
3. Particularly Atrocious Procedures or Punishments
Finally, Venckiene argues that Lithuania employs "particularly atrocious procedures or punishments." Venckiene points to the allegations in her Petition that the government allegedly extended an expired statute of limitations in 2011 in order to continue an investigation into possible charges against her for "humiliating the court" and ex post facto eliminated her judicial immunity and parliamentary immunity in order to prosecute her. (Dkt. 29 at ¶ 12). Venckiene also points to excerpts of articles reporting that courts in a handful of countries have denied extradition requests from Lithuania because of inhuman prison conditions, which she contends "would likely rise to the level of an Eighth Amendment violation of American law." (Id. ).
"It is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system *860of another sovereign nation." Sahagian v. United States ,
Nonetheless, "like most legal principles, the principle of comity is not without exceptions." Sahagian ,
Venckiene's first example of "procedures inimical to the constitutional protections in the United States" relates to an extension of the statute of limitations. Venckiene claims the head of the Judicial Council petitioned to extend the already expired limitations period for a "humiliating the court" charge in order to continue an investigation against her and the petition was granted. Constitutional challenges to the retroactive extension of an already-expired statute of limitations for a criminal offense arise under the Ex Post Facto Clause of the Constitution. See U.S. Const. art. I, §§ 9, cl. 3 and 10, cl. 1; see also, e.g. , Stogner v. California ,
Venckiene next claims that if convicted in Lithuania, she would be subject to inhuman prison conditions that "would likely rise to the level of an Eighth Amendment violation of American law." (Dkt. 29 at ¶ 13). In support of this claim, Venckiene relies only on an exhibit attached to her Reply in Support of her Motion purportedly showing that "numerous other countries have denied extradition requests from Lithuania because of inhuman conditions in Lithuania prisons." (Id. at ¶ 12). The exhibit lists various excerpts from Lithuanian news articles, some of which report that a Northern Ireland court in 2013 refused to extradite two individuals in on grounds of poor conditions of detention, a Danish court in 2014 refused to extradite an individual citing inhuman conditions of confinement cells, and a Malta court in 2017 refused to extradite an individual to Lithuania because the conditions of detention are "equivalent to torture." (Dkt. 15-1). One article excerpt also reports that at some unidentified time, the European Court of Human Rights approved an agreement requiring Lithuania to pay 15 prisoners €100,000 for damages from poor detention conditions. (Id. ).
Of course, Venckiene need not prove her claim at this stage but to obtain the stay requested, she must at least show the claim will likely succeed. Unfortunately, the claim as alleged is underdeveloped and lacks the sufficient evidentiary support to meet even that burden. It is telling also that Venckiene has not sought relief under the Convention Against Torture-a claim that, if it Venckiene were able to develop it, would surely have been a better strategy for challenging Lithuania's allegedly inhuman prison conditions.
*862Thus, Venckiene also fails to show a likelihood of success on this third challenge to the Secretary of State's extradition determination. Because the remaining factors also favor denying Venckiene's request for a stay, the Court denies Venckiene's Motion for Extension of Stay on these grounds as well.
Venckiene's Motion for Extension of Stay is denied with regard to all claims challenging the Secretary of State's extradition determination.
II. Judge Martin's Certification Order
Venckiene also challenges Judge Martin's Order certifying her as extraditable on the grounds that the offenses charged fall within the "political offense" exception of the Treaty and that Judge Martin erred in finding probable cause existed. Venckiene must show first that this Court has the authority to review Judge Martin's Order at this stage in the proceedings and second that the circumstances warrant a stay of her surrender until the challenge to Judge Martin's Order in her habeas petition can be heard.
A. The Court's Authority to Review Judge Martin's Certification Order
A magistrate judge's decision in extradition proceedings is not directly appealable. Bovio v. United States ,
Here, Venckiene filed her habeas petition challenging the magistrate's decision after the Secretary issued its ruling authorizing her surrender pursuant to the Treaty. Venckiene asserts that this Court has jurisdiction to hear her habeas petition because "[a]lthough Petitioner could have challenged Magistrate Judge Martin's certification ruling through a petition for a writ of habeas corpus immediately, a writ may be sought at any point in the process because the order is not considered 'final' until the Secretary has rendered decision." (Dkt. 1 at 3). The Government contends that the certification ruling is subject to habeas review only until the Secretary renders its final decision and that the final ruling renders any challenge to the certification ruling moot.
Venckiene's petition raises a rare, if not novel, issue in extradition proceedings. Case law addressing whether the Court has authority to conduct habeas review of a magistrate's ruling at this stage of the extradition process is virtually nonexistent. Venckiene cites only one, non-precedential example of a case in which a court considered a habeas petition challenging the magistrate judge's certification ruling after the Secretary issued its ruling. In De La Rosa Pena v. Daniels , the petitioner filed a habeas petition challenging both the Secretary's extradition determination and the magistrate judge's certification ruling, and *863the district court considered and decided both issues. No.
Title
Additionally, contrary to the Government's contention, a challenge to the magistrate court's ruling is not necessarily rendered moot by the Secretary of State's decision. Under the scheme set forth in
It is telling that Venckiene can identify only one example of a court considering a challenge to the magistrate judge's ruling at this stage. But this is likely due to the fact that most parties opt to file a habeas petition before the Secretary of State's decision is issued thereby automatically staying extradition rather than risk receiving an unfavorable decision and having to face the burden Venckiene now faces in moving the Court to enter a stay on her behalf. Certainly, Venckiene might have avoided a great deal of trouble had she done so, but she elected to forego the automatic stay in hopes of securing a favorable outcome and quicker release from custody by presenting her arguments directly to the Secretary of State.
Regardless, the only finding the Court can make with certainty is that nothing in the statute, applicable case law, or other authority prohibits Venckiene from filing her habeas petition challenging the magistrate judge's ruling until after the Secretary of State makes its determination or the Court from hearing the petition so long as the review is limited only to whether Venckiene was extraditable in the first *864instance, i.e. whether the matter should have been certified to the Secretary of State at all. The question remains, however, as to what effect granting a habeas petition challenging the magistrate judge's ruling would have on the petitioner's extradition status. But the Court need not address that issue now in considering whether to grant a stay. It is sufficient to find that the Court can consider Venckiene's claims challenging Judge Martin's certification order.
B. Motion to Stay
Habeas corpus review of an extradition magistrate's order is limited to determining "whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Eain ,
1. "Political Offense" Exception
The Treaty provides that "Extradition shall not be granted if the offense for which extradition is requested is a political offense."
Courts generally recognize two forms of political offenses: "pure" political offenses, i.e. an "act that is directed against the state but which contains none of the elements of ordinary crime" such as treason, sedition and espionage, and "relative" political offenses, i.e. , "common crimes ... so connected with a political act that the entire offense is regarded a political." Eain ,
Venckiene argues that the charges against her constitute relative political offenses. To qualify as a "relative" political offense, the offense must satisfy two prongs: (1) it must have involved an uprising or other violent political disturbance, such as war, revolution or rebellion and (2)
*865must have been incidental to, in the course of, or in furtherance of the alleged uprising. See Ordinola v. Hackman ,
Venckiene was a judge in Lithuania from 1999 to 2012. (Dkt. 1 at ¶ 5). In 2008, her brother's four-year-old daughter reported that she had been sexually molested by various individuals in the Lithuanian legislature and judiciary while in her mother's care. (Id. at ¶ 7). Venckiene and her brother filed complaints against these individuals, which Venckiene claims were ignored. (Id. at ¶ 8). In 2009, two of the accused were shot and killed; soon thereafter, Venckiene's brother's dead body was discovered and Venckiene became the child's legal guardian. (Id. at ¶ 9). Venckiene claims the highly publicized pedophilia case ignited a grassroots political movement and anti-graft political party called "Way of Courage." (Id. at ¶ 10). Venckiene became the party's voice and eventually the party chair. (Id. ). In 2010, another accused was found dead. (Id. at 11). In 2011, the Court ordered the child be returned to her mother but the child refused. (Id. at ¶ 13). In 2012, officers physically assaulted Venckiene's mother-in-law in an attempt to remove the child from Venckiene's home. (Id. at ¶ 14). During a second attempt at transferring the child, 100 protestors gathered at Venckiene's home as 200 police officers descended on the home. (Id. at ¶ 15). The officers forcibly removed the child from Venckiene, injuring Venckiene's right shoulder in the process, and detained a majority of the protesters. (Id. ) Venckiene was charged with hindering the activities of a bailiff and resisting a civil servant for her actions related to the transfer of the child to her mother. Venckiene also claims that she was the subject of at least one assassination attempt through apparent sabotage of her vehicle. (Dkt. 19 at ¶ 17).
Venckiene argues that the "organized protest against the Lithuanian authorities that overflowed into violence" constitutes an uprising or violent political disturbance and that her alleged hinderance and resistance were incidental to the uprising. (Dkt. 13 at 17).
The Seventh Circuit considered what constitutes an uprising or violent political disturbance for purposes of the "political offense" exception in Eain v. Wilkes ,
An on-going, defined clash of military forces may be significant because that is one backdrop which may bring into sharp relief an individual act of violence. Once the circumstances move away from that context, the judiciary's task of determining what degree or type of violent disturbance permits a successful invocation of the political offense exception becomes more difficult.
Of course, Venckiene's case is distinguishable from Eain because the Way of Courage's activities are not directed at civilians. Eain is still instructive, however, because the protest against Lithuanian authorities is far from a "clash of military forces" on the spectrum of violent disturbances. In fact, the only violence Venckiene alleges are the deaths of three of the accused and her brother, injuries to her mother-in-law and her, and the assassination attempt against her.
Other courts have held that showings of greater degrees of violence than Venckiene alleges did not constitute an uprising or violent political disturbance, for example, in Vo v. Benov ,
In Vo v. Benov , the petitioner was a member of the Government of Free Vietnam (GFVN), a political party formed to dismantle the Communist dictatorship of Vietnam, and charged with attempting to bomb the Vietnamese embassy in Bangkok.
Venckiene's allegations of violence are even less than those rejected by the court in Vo. The events set forth in Venckiene's Petition were clearly traumatic, and the Court in no way means to minimize the violence and horrendous actions Venckiene's family has endured or the pain they continue to suffer as a result. But the Court cannot consider Venckiene's allegations in a vacuum. The Court is bound by the provisions of the Treaty and is permitted to intervene in the extradition process at this stage only to the narrow extent provided by controlling case law. That case law is clear that for the "political offense" exception to apply, Venckiene must show a much greater degree of violence than she has been able to demonstrate here.
*867Venckiene cites zero cases supporting her claim that the political party's actions and protests are sufficient to constitute an uprising for purposes of establishing the "political offense" exception. Venckiene fails to meet her burden of showing that she will likely succeed on her claim that the political offense exception applies.
2. Probable Cause
Before certifying a person as extraditable, a magistrate judge "must find probable cause under federal law that the person committed the offense he is charged with by the foreign government." Bovio ,
To succeed on her habeas claims, Venckiene must show that there was no evidence warranting Judge Martin's probable cause findings. See, e.g. ,
Article 231 of the Lithuania Criminal Code provides,
1. A person who, in any manner, hinders a judge, prosecutor, pre-trial investigation officer, lawyer or an officer of the International Criminal Court or of another international judicial institution in performing the duties relating to investigation or hearing of a criminal, civil, administrative case or a case of the international judicial institution or hinders a bailiff in executing a court judgment shall be punished by community service or by a fine, or by restriction of liberty, or by imprisonment for a term of up to two years.
2. A person commits the act indicated in paragraph 1 of this Article by using violence or another coercion shall be punished by a fine or by arrest or by imprisonment for a term of up to four years.
(Dkt. 1 at 16-17).
Article 286 of the Lithuanian Criminal Code provides:
A person who, through the use of physical violence or threatening the immediate use thereof, resists a civil servant or another person performing the functions of public administration shall be punished by community service or by a fine, *868or by imprisonment for a term of up to three years.
(Dkt. 1 at 19).
The charges against Venckiene for violating these provisions of the Code are based on the same set of facts: that she refused to comply with court orders to transfer custody of the child to the child's mother including by assaulting an officer at her home during execution of the order. According to the evidence submitted by the Lithuanian government, during the pretrial investigations, the child's mother and the bailiff responsible for effectuating the transfer reported that Venckiene repeatedly failed to turn over the child as ordered and deferred attempts to transfer the child by saying the child did not want to go to her mother. See, e.g. , In re Extradition of Jarosz ,
Based on this evidence, there was more than sufficient evidence to support Judge Martin's finding of probable cause that Venckiene hindered the bailiff in executing the court's transfer order-i.e. , by refusing to turn over the child, barricading the child in her home, preventing the officers from physically removing the child, etc.-and that Venckiene used physical violence to resist a civil servant or other person performing the functions of public administration-i.e. , by kicking the child's mother and punching the officer executing the court's order. In other words, Venckiene cannot show that there is no evidence supporting the probable cause finding.
Plaintiff argues that a transcript of the events transpiring the day the officials came to Venckiene's house to remove the child negates any finding of probable cause. "Neither the federal rules of evidence, nor the federal rules of criminal procedure apply" in an extradition hearing. In re Mazur ,
The transcript does not "obliterate" the probable cause finding. First, the transcript ends as the child is being taken out of the house, before Venckiene allegedly *869punched the officer. Second, the transcript only reports statements, not actions, between the individuals present. While the transcript may capture statements indicating that a physical altercation occurred, that is not necessarily the case and the absence of such statements does not prove that no physical assault occurred. Finally, even if the transcript showed clearly that no physical assault occurred, it far from obliterates the hindering charge because the transcript substantiates the bailiff's claim that Venckiene erected barriers to prevent the officers from entering her house to execute the transfer order. (See, e.g. , Dkt. 13 at Ex. 17 ("Bailiff: Police officers are asked to remove the obstacles ... Please remove the obstacles.") ).
Additionally, Venckiene argues for the first time in her supplemental brief that there are videos from the incident that should be collected and produced prior to denying the stay. (Dkt. 29 at ¶ 19). Venckiene provides zero details about these videos, for example, what they will show or how they will make Venckiene more likely to succeed on her habeas petition, except to say that they are "relevant to explain what happened on the day the offenses occurred." (Id. ). Without more, this eleventh hour attempt to stay the Court's ruling based on new evidence is unconvincing and, as discussed already, the evidence proffered by the Lithuanian government provides ample support for Judge Martin's probable cause findings. See, e.g , Peroff ,
Therefore, Venckiene fails to make a strong showing that she will likely succeed on the merits of her challenges to the magistrate judge's certification order. The remaining stay factors favor denying the motion for a stay for the same reasons discussed above. Venckiene's only irreparable harm-that her outstanding legal claims related to her extradition will become moot-is tempered by the fact that she may still present a defense before the Lithuanian courts and prompt execution of removal orders facilitates international rule of law and promotes public interest.
Venckiene's Motion for Extension of Stay is denied with regard to all claims challenging Judge Martin's Order certifying her as extraditable.
III. Pending Congressional Bills
On June 25, 2018, New Jersey Representative Christopher Smith presented to Congress a bill titled "Give Judge Venckiene Her Day in Court Act" that seeks "the relief of Judge Neringa Venckiene, who the Government of Lithuania seeks on charges related to her pursuit of justice against Lithuanian public officials accused of sexually molesting her young niece." H.R. 6218. Illinois Representative Randy Hultgren introduced an identical bill on June 27, 2018. See H.R. 6257. If enacted, either proposed bill would exclude Venckiene from the Treaty and all other laws allowing for her extradition to Lithuania and allow her free movement and the ability to work in the United States until a final order is issued on her pending asylum application. H.R. 6218; H.R. 6257. Venckiene also submitted a June 9, 2018 letter from Representative Smith, in which Smith states that he expects the bill will move more quickly than a typical private bill because, unlike typical private bills, HR 6218 seeks only to give Venckiene access to the normal political asylum process and not to give her legal permanent status. (Dkt. 31-1). In the letter, Representative Smith states also that he is working with the Judiciary Committee *870to achieve fast-track processing for the bill. (Id. )
Venckiene's stay request based on the pending Congressional bills is subject to the same four-factor analysis under Nken. Therefore, Venckiene bears the burden of showing that the pending bills warrant an exercise of the court's discretion in her favor, including by making a strong showing that she is likely to succeed on the merits, i.e. , that her extradition will likely be prevented by the passage of either bill. But Venckiene's brief is devoid of any such argument. First, Venckiene provides no precedent-and the Court knows of none-for a court staying execution of a warrant of surrender issued by the Secretary of State until Congress could vote on a pending proposed bill. Second, except for Representative Smith's assurances that the bill will move more quickly than a typical private bill, Venckiene provides no timeline for the voting process. As of July 12, 2018, neither bill had been put to a vote in the House. Third and most importantly, Venckiene fails to address at all the likelihood that either bill will pass the House, pass the Senate, receive approval from the President and become law. Of course, this is undoubtedly because she has no way of making such a prediction. The Court certainly has no way of knowing and will not blindly guess as to when or how Congress will act.
Venckiene fails to address whether, much less make a strong showing as to, the likelihood either bill will prevent her extradition. Because the other stay factors also favor denial for reasons already discussed, the Court denies Venckiene's Motion for Extension of Stay based on the pending Congressional bills.
CONCLUSION
For the reasons stated above, the Court denies Venckiene's Motion for Extension of Stay (Dkt. 9).
Although the Court has ruled on the likelihood Venckiene will succeed on the merits of her habeas petition, the Petition is not yet fully briefed. Because the Court has found that it has the authority to hear Venckiene's challenges to the Secretary of State's extradition determination and Judge Martin's certification order, the Court directs the parties to submit briefing on Venckiene's pending Petition. Additionally, the Court permits Venckiene to first amend her Petition to include the challenges raised for the first time in her supplemental brief, if so desired.
These are the "traditional" stay factors. Nken ,
In the Jurisdiction section of her habeas petition, Venckiene cites to cases standing for the narrow principle that the Secretary of State's extradition determination is subject to judicial review on a habeas petition where the petitioner seeks relief under the Convention Against Torture (CAT) or Foreign Affairs Reform and Restructuring Act (FARR Act). See, e.g. , Prasoprat v. Benov ,
The court in Matter of Burt held that it was appropriate for the court to hear the petitioner's due process challenge to the executive branch's actions in the extradition proceedings but ultimately found that the executive branch had not violated petitioner' due process rights because it was not fundamentally unfair when the government "as extraditer [ ] makes decisions responsive to diplomatic concerns that may secondarily affect the accused's ability to respond to criminal charges brought by a foreign state."
The exhibit also listed excerpts from articles that are irrelevant to Venckiene's prison-conditions claim, for example, articles reporting that Russia refused to extradite individuals to Lithuania because it had granted those individuals asylum and articles reporting that Germany and the Ukraine in 2001 and 2015, respectively, each refused to extradite an individual involved in the January Events of 1991 in Lithuania for reasons not related in any way to prison conditions. (Dkt. 15-1).
Whether the offenses charged qualify as "political offenses" is a distinct issue from whether the request itself is politically motivated. The magistrate judge decides the former, see Eain ,
Reference
- Full Case Name
- Neringa VENCKIENE v. United States
- Cited By
- 4 cases
- Status
- Published