I

N THE MATT ER OF TH E EXTRADI TI ON OF A ARNO OL AVI

L I UKSI L A UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Mag istrate No. 13- 970 DAR

MEMORAN DUM OP INION This matter is befor e the c ourt on the United States’ r equest on be half of the g overnme nt of F inland, pursuant to 18 U.S.C. § 3184, to certify the extraditability

of Mr. Aa

rno L iuksila. Criminal Com plaint (Docume nt No. 1). Mr. L iuksila filed a Motion to Dismis s the Criminal Complaint and Deny

Finland’ s Ex tradition Request (“Motion”) (Doc ument No. 15) whic h is also pending for the c ourt’s dete rmination. The cour t conducted he aring s with respec t to the g overnme nt’s reque st on J anuar y 13, J anuar

y 16, J anuar

y 22, and January

23, 2014, and hea

rd arg ument with respec t to Mr. L iuksila’s motion t o dismiss on April 28, 2014. Upon consideration of the parties’ written memora nda, the e vidence admitted, the ar g uments made by counsel on the r ecor d at the hea ring s, and the e ntire re cord he rein, the unde rsig ned will deny Mr. L iuksila’s motion and will certify Mr. L iuksila’s ext raditability

.

BACK GR OUND Mr. L iuksila is sought by the Finnish g overnme nt to answer to c harg es pending in Finland that arise out of

cer tain housing sha

res that he owned, whic h the g overnme nt alleg es we re “distrained” in 2001 to cover Mr . L iuksila’s debts. See Gover nment Ex hibit 2 (filed atI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 2

Document No. 1- 2). On Oc tober 23, 2007, a prosec utor in Finland submitted an application for a summons to t he District Court in Turku, F inland, char g ing Mr . L iuksila with ag g ravated fra ud by a debtor , in violation of Section 3 of Chapter 39 of the Criminal Code of Finland, or , in the alterna tive, with ag g ravated dishonesty by a debtor in violation of Section 1a of Chapter 39 of the Criminal Code of Finland. Id. Under Finnish law, both off

enses a re punishable by

a ter m of imprisonment of at least four months and at most four y ear s. Id. Wit h respe ct to the first cha rg e, ag g ravated fra

ud by a debtor , the g overnme nt of Finland alleg es that during an “e nforc ement inquiry ” in J anuar y 2002, afte r Mr. L iuksila had bee n serve d in May 2001 with a “distraint protoc ol” for the “distraint” of his shares in a housing

company in order to cover his debts, Mr. L iuksila “untruthfully announce d” that he sold the sha res to thre e corpor ate e ntities on J anuar y 1, 2000, prior to the distraint. Id. The g overnme nt of Finland 1 alleg es that the sale was “ fictitious,” and that Mr. L iuksila “possessed the a fore mentioned share s . . . .” Id. I n support of its alleg ation that the sale w as “f ictitious,” the g overnme nt of Finland proff ers that identifie rs associa ted with the purporte d buy ers, suc h as “business c odes” a nd “tra de reg ister numbers,” wer e included in the bills of sale , but were not assigne d to the entities until J uly 3, 2000, afte r the da te of the pur ported sale

. Id. The g overnme nt further proff ers that “[m] oney [w] as not used in the tra

nsactions; instead, F I M 550,000 has bee n rec orded a s a debt to Aar no L iuksila or his spouse and F I M 200,000 has bee n offse t ag ainst loans to the share holder. Aar no L iuksila has owned the a fore said companie s, and they have not be en eng ag ed in any business activities.” Id.

W h e n r e f

e r e n c i n g m a t e r i a l s f

r o m t h e u n d e r l y i n g p r o c e e d i n g s i n F i n l a n d , t h e u n d e r s i g n e d r e l i e s o n t h e 1 E n g l i s h t r a n s l a t i o n s w h i c h w e r e p r o v i d e d b y t h e g o v e r n m e n t o f F i n l a n d

.I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 3

The g overnme nt of Finland f urther a lleg es that the housing share s at issue “e ntitle Mr. L iuksila to the possession” of an a partment a

nd a “busine ss premises,” a nd that Mr. L iuksila rente d the apa

rtment to an individual and re ceive d renta l pay ment in Aug ust 2000, after the date of the purpor

ted sale. Id. Wit h respe ct to the alter native cha

rg e, ag g ravated dishonesty by a debtor, the g overnme nt of Finland a lleg es that Mr. L iuksila transfer red the housing c ompany share s with knowledg e that it “may harm the f

inancial inter ests of his cre ditors.” Id. To provide f

urther c ontext with respec t to the enforc ement proc eeding , Mr. L iuksila submitt ed an unsw orn letter f rom Dr. Jussi Tapa

ni, Professor of Criminal L aw a t the University of Turku in Tur

ku, Finland. See Motion Ex hibit E (Document No. 15- 2). Dr. T apani de scribes the proc ess as follows:

A debtor fails to pay a debt to a p ar t i cular cre ditor, causing the cre ditor to seek and obtain a court judgme nt for the amount of the debt. After the judgme nt is enter ed, the district bailiff then convene s the enfor ceme nt inquiry , during which the bailiff summons the debtor t o t h e enfor ceme nt office led by the senior district bailiff an d questions the debtor about what assets m ay b e used to satisfy the cre d itor’s judgme nt. The debtor’s attendanc e at this proce eding is compulsory (Chapter 3 Section 52-60 Enforc ement Code), and the debtor’s participa tion does not g ener ally result in the discharg e of his debt or in any

other be nefit to the debtor. Id. at 2. Dr. Ta

pani cha rac terizes the enf

orce ment inquiry

as “a somewhat infor

mal proce eding ,” and notes that while the debtor is not sworn under oath, the F innish penal code “cr iminaliz es a debtor’s c oncea lment of assets or his provision of misleading information in connec tion with an enfor ceme nt inquiry .” Id. Dr. Ta pani advises that f

ollowing a

2009 decision fr om the Europea n Court of Human Rig hts, “the F innish S upreme Court expressly rec og nized the rig ht of a de btor subject to an e nforc ement inquiry to refuse to answer

the bailiff’ s questions in certain situations.” Id.I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 4

Following the Finnish prose cutor’s O ctober 23, 2007 application for

a summons to the District Court in Turku, the District Court issued an orde r of de tention on November 27, 2009, finding that “Mr. L iuksila is upon probable ca use suspec ted of a

serious ec onomic offe nce” and noting that a

war rant for his arre st was issued af

ter he was “ summoned as a de fenda nt to a court session held on 16 Novembe r 2009, whe re he failed to a ppear .” Gove rnment Exhibi t 2. The Court, in its decision, ac knowledg ed that Mr. L iuksila lives in the United States, but found that “ther e is rea son to suspect that the per son whose dete ntion is requested will not voluntarily arr ive in Finland for

the purpose of

prosec ution.” Id. The prose cutor in F inland subsequently submitt ed an a

pplication to the Finnish Ministry of Jus tice on De cembe r 16, 2009 “pr opos[i ng ]” that it request the e x tradition of Mr. L iuksila. I n Fe bruar

y 2010, the Embassy

of F inland, on behalf

of the F innish Mini stry

of Jus tice, submitt ed a f

ormal re quest to the United States Depa rtment of State for

the extradition of Mr. L iuksila. Government Exhibit 1 (filed a t Document No. 1- 3); see also Dec lara tion of Samuel W. McDona ld (“McD onald Dec lara tion”) ¶ 2. On Dec ember 30, 2013, an Assistant United States Attorney swore to a

criminal complaint and r equeste d a wa rra nt for Mr. L iuksila, pursuant to 18 U.S.C. § 3184 and the rele vant treaty provisions, to effe ctuate the g overnme nt of Finland’ s reque st for extradition in connection with the pending char g es in Finland. Affidavit in S upport of Complaint (Document No. 1- 1).

AP P LICABLE STANDARD “Throug h extradition proceeding s, one nation turns over custody of a pe rson at the reque st of another

nation, pursuant to a tre aty betwee n the two nations.” W ard v. Rutherford , 921 F.2d 286, 287 ( D.C. Cir. 1990) (citation omitted); see also 18 U.S.C. § 3184. W hen the UnitedI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 5

States is presented w ith a reque st for an individual’s e x tradition, this court’s role is “to de termine whether ‘the e vidence [i s] s ufficie nt to sustain the charg e under the provisions of the prope r trea ty or conve ntion.’” W

ard , 921 F.2d a t 287 (citing 18 U.S.C. § 3184). Thus, this court does not “adjudica t[ e] guilt or innoce nce,” but instead conduc ts “a pre liminary examination to deter mine whether

a ca se is made out which w ill jus tify the holding of

the ac cused a

nd his

surre nder to the de manding nation.” Id. (citations omitted) (quoting another source ) (inter

nal quotation marks omitted); see also id. at 288 (c iting Benson v. M cMahon , 127 U.S. 457, 463 (1888)) . I n acc ordanc e with the g overning statute, if the cour

t determines that the e vidence is sufficie nt, it “shall certify the same, tog ether

with a copy

of all the testimony

taken be fore [i t] , to the Secr etar

y of State . . . .” 18 U .S.C. § 3184. Another me mber of this cour t outlined the findings ne cessa ry for c ertification, noting that: [a] n extradition cer tificat i o n i s in order

. . . wher e: 1) the judicial office r is authoriz ed t o conduct the extradition proce eding ; 2) the court ha s jurisdiction over the fug itive; 3) t he applicable treaty is in full forc e and eff

ect; 4) the crimes fo r which surre nder is reque sted are cover ed by the app l icable trea ty ; and 5) there is sufficie nt evidenc e to support a finding of probable cause as to eac h char g e for which extradition is sought. In the Matter of the Ex traditi on of Zhenley Y e Gon , 768 F. Supp. 2d 69, 73 (D.D .C. 2011) (citing Fernandez v . Phillips , 268 U.S. 311, 312 (1925)). U pon cer tification by

the cour t that the person is ex traditable, the Secre tary of State then de termines whe ther to surre nder the individual. See id. at 72.

DISCUSSIO N The unde rsig ned admitted into evidenc e the f ollowing e x hibits offere d by the UnitedI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 6

States in support of the extradition request, upon finding that they wer e submitted by

the Finnish Ministry of Jus tice and a

uthenticated in a ccor dance with 18 U.S.C. § 3190 and the releva nt treaty provisions:

• Gover

nment Ex hibit 1 (filed as Doc ument No. 1-3): Ve rbal Note from the Embassy of F inland to the United States Depa rtment of State date d Fe bruar y 22, 2010; Ex tradition Treaty

betwee n the United States and F inland signe d on J une 11, 1976; Schedule of O ffe nses appe nded to the 1976 Tre aty ; Protocol to the Ex tradition Treaty

betwee n the United States and F inland, signe d on Dec ember 16, 2004; and Annex to the Protocol

• Gover

nment Ex hibit 2 (filed as Doc ument No. 1-2): L etter dated Fe bruar y 1, 2010 from the Ministry

of Jus tice of F inland; November 27, 2009 decision by

the District Court in Turku, Finland, a nd an Eng lish translation of the document; October 23, 2007 application for

a summons by

a prose cutor in F inland, and an Eng lish translation of the document; De cembe r 16, 2009 application by a prosec utor in Finland to the Ministry of Jus tice, and a

n Eng lish translation of the document; and the te x t of Chapter 39 of Finland’ s Criminal Code

• Gover

nment Ex hibit 3: P hotogr aph of a n individual, identified as Mr. L iuksila, provided by

the g overnme nt of Finland

• Gover

nment Ex hibit 4: L etter dated J uly 18, 2012 from the Ministry of Jus tice of Finland to the United States D epar tment of J ustice’s Of

fice of I nterna tional Affa irs

• Gover

nment Ex hibit 7: L etter dated J anuar y 27, 2014 from the Ministry of Jus tice of F inland to the United States Depa rtment of Just ice’ s Offic e of I nterna tional Affa irs; L etter da ted J uly 10, 2009 from the United States D epar tment of J ustice’s Offic e of Interna tional Affa irs to the Ministry of Jus tice of F inland; and the text of Sections 1, 2, 3, and 6 of Chapte r 8 of F inland’s Criminal Code

• Gover

nment Ex hibit 8: L etter dated Fe bruar y 3, 2014 from the Ministry of Jus tice of F inland to the United States Depa rtment of Just ice’ s Offic e of I nterna tional Affa irs The United States a lso relied on the f ollowing e x hibits, which were not provided by the Ministry of Jus tice of F inland: 2

F o r t h e r e a s o n s s e t f

o r t h o n t h e r e c o r d , t h e u n d e r s i g n e d d i d n o t a d m i t i n t o e v i d e n c e G o v e r n m e n t E x h i b i t 9

. 2I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 7

• I ncluded in Gove rnment Exhibi t 1: Declar ation of Samuel W. McDonald, Attorney -Adviser

in the Offic e of the L eg al Adviser f or the De partment of State

• Gover

nment Ex hibit 5: P retria l Services Repor t for United States District Court completed on January

9, 2014

• Gover

nment Ex hibit 6: Addit ional Dec lara tion of Ron B. Ka twan, Attorne y Adviser in the Of

fice of the L eg al Adviser f or the De partment of State

This m atter is properly before this court The unde rsig ned is a United States Ma g istrate Judge a uthorized to conduct this extradition proceeding , and this court has jurisdiction since Mr . L iuksila was “f ound” within this jurisdiction, as he wa s arr ested in the District of Columbia at his re sidence

. See 18 U.S.C. § 3184; see also W

ard , 921 F.2d a t 288-89. The United States Code pr ovisions “relating to the surre nder of persons who ha

ve committed crimes in fore ign c ountries shall continue in for ce only during the exist ence of any trea ty of extradition with such foreig n g overnme nt.” 18 U.S.C. § 3181(a). The United States and Finland sig ned an E x tradition Treaty on J une 11, 1976, and f

ollowing a

n extradition agr eeme nt betwee n the United States and the Europea n Union signe d in 2003, the United States and F inland executed a supple mental Protocol and Anne x to the Ex tradition Treaty . An offic ial of the United States Depa

rtment of State attests that the tre aty and the suppleme ntal provisions are “ in full forc e and e ffe ct betwe en the United States a nd Finland.” McDona ld Decla ration ¶ 2. The undersig ned thus finds, and indee d neither pa rty disputes, that the g overning trea ty is in full force and ef fec t. See Ye Gon , 768 F. Supp. 2d at 80 (c itations omi tted) (“ The De partment of State’ s deter mination as to the validity of a tre aty

is entitled to defer ence , as is their dete rmination as to extraditions gene rally .”).I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 8

Mr. Liuksi la is charged wit h an extradi table offe nse Article 1 of

the Protocol and Anne x g overns the de termination of whe ther the a lleg ed offe nses ar e extraditable. See McDona ld Decla ration ¶ 5. An of

ficial of the United States Depa rtment of State ave rs that “[t] he off enses f or which [Mr. L iuksila’s] ex tradition is sought ar e

cover ed under

Article 1 of

the Protocol and Anne x . . . .” Id. Article 1( b) of the Protoc ol provides that “Ar ticle 4 of the U .S.-EU Ext radition Ag ree ment, as set for

th in Article 1 of the A nnex to t his Protocol, shall gove rn the scope of extraditable offe nses, re placing Articles 2 a nd 3(3) of the 1976 Ext radition Tre aty [.] ” Gover nment Ex hibit 1. Under Article 1(A)( 1) of the A nnex, and releva nt to this action, “[a]n offe nse shall be a

n extraditable offe nse if it is punishable under the laws of the r equeste d and reque sting States by

depriva tion of liberty

for a maxi mum period of more than one y ear or by a

more seve re pe nalty .” This principle, know n as “dua l criminality ,” re quires the c ourt to deter mine whether

the conduc t alleg ed is a ser ious crime in both countries. I n United States v. Sensi , this Ci rcuit obser

ved that “[t]he law does not requir e that the name by which the c rime is descr ibed in the two countrie s shall be the same ; nor that the scope of the liability shall be

coex tensive , or, in other r espec ts, the same in the two countr ies. I t is enoug h if the particular act charged is criminal in both jurisdictions .” 879 F .2d 888, 894 (D.C. Cir. 1989) (e mphasis in orig inal) (quoting Colli ns v. Loisel , 259 U.S. 309, 312 (1922)); see also Y e Gon , 768 F. Supp. 2d at 81. Article 1(A)( 3)(a ) of the A nnex codifies this principle, stipulating that “a n offe nse shall be considere d an extraditable off ense . . . r eg ardle ss of whethe r the law s in the reque sting a nd reque sted States place the offe nse within the same c ateg ory of off enses or descr ibe the off

ense by the same te rminology [.] ”I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 9

The g overnme nt of the United States first averr ed that the a lleg ed F innish offenses “cor respond to the c oncea lment of assets and f alse oa ths and claims re lated to ac tual or contemplated ba

nkruptcy proce eding s under United States la w pursuant to Title 18, United States Code, Section 152.” Memor andum of L aw in Support of Extradition (Document No. 9) a t 2, 9. The g overnme nt subsequently withdrew this contention, and now submits t hat Mr. L iuksila’s alleg ed conduc t would be punishable unde r 18 U.S.C. § 1341 (mail fra ud), § 1343 (wir e fr aud), § 1001 (fa lse statements), a nd under D istrict of Columbia Code § 22-3221 (fr aud). See Gover nment’s Memora

ndum of L aw in Opposition of the Motion to Dismis s the Complaint and Deny Ex tradition (“Opposition”) ( Document No. 19) at 2, 2 n.1. Mr. L iuksila contends that the dual c riminality require ment has not bee n met, maintaining that the “c rux” of the cha rg es ag ainst him invol ve “a lleg edly failing to acc urate ly

acc ount for

cer tain of his assets in conne ction with an attempt to collect a private de bt.” Def

endant’ s Reply in Support of His Motion t o Dismiss t he Criminal Complaint and Deny Finland’ s Ex tradition Request (“ Reply ”) ( Document No. 22) at 4; see also id. at 23 (c hara cter izi ng the alleg ed cr iminal conduct a s “fa ilure to fully disclose his assets in connec tion with private debt collec tion proce eding s”). Mr. L iuksila contends that “[t] he F innish offenses f or which [he] is sought . . . not only fail to share an esse ntial char acte r with any corr esponding U.S. offense , they offe nd the longsta nding A merica

n reje ction of the use of

criminal sanc tions to collect private de bts.” Def endant’ s Memorandum in Support of His Motion to Dismi ss the Criminal Com plaint and Deny Finland’ s Ex tradition Request (“Me morandum”) (Doc ument No. 15-1) at 13; see also Reply at 23. Mr. L iuksila repre sents that the under ly ing de bt “will be fully satisfied no later

than October 2015.” Reply

at 23; see also id. at 4 n.1.I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 0

Under laws of the U nited States prohibiting mail and wir e fr aud, the g overnme nt would have to pr ove that Mr. L iuksila “devised or intend[ed] to devise any

scheme or ar

tifice to defr aud, or f

or obtaining money

or prope rty

by means of f

alse or f raudule nt pretense s, repr esenta tions, or promises,” and tha t he utiliz ed wire communications or the mail to furthe r the scheme . 18 U.S.C. §§ 1341, 1343; see also United States v . Coughlin , 610 F.3d 89, 97 ( D.C. Cir. 2010); United States v. Max well , 920 F.2d 1028, 1035 n.8 ( D.C. Cir. 1990) (citation omitted) (noting that “the e lements that must be proved unde r the wire fra ud statute, 18 U.S.C. § 1343, and under the mail fra

ud statute, 18 U.S.C. § 1341, are ide ntical”) ; United States v. Singhal , 876 F. Supp. 2d 82, 100 (D.D .C. 2012). Whil e Mr. L iuksila chara cter izes the alleg ed conduc t as “fa ilure to aff irmatively

disclose his assets to his creditors,” Re ply at 22, the under signe d finds that the conduc t alleg ed in support of the fir st charg e – ag g ravated fra ud by a debtor – could be c hara cter ized as a sche me to defr aud, or to obtain prope rty by means of f

alse or f raudule nt pretense s. As descr ibed above , the g overnme nt of Finland a lleg es that Mr. L iuksila ga ve “f alse a nd misleading information” in an enfor ceme nt proce edingin order to obtain f inancial be nefit fr om housing shar es that we re subjec t to distraint. See Gover

nment Ex hibit 2. More specific ally , the g overnme nt of Finland a lleg es that Mr. L iuksila devised “f ictitious” transac tions to t ransf er the share s to corporate entities that he owne d, and then f

alsely repr esente d during the cour se of the e nforc ement proc eeding that he sold the share s befor e they wer e subjec t to dist raint. Wit h respe ct to the circ umstantial evidence 3 of Mr. L iuksila’s intent, the g overnme nt alleg es that the bills of sale c ontain business codes a nd

M r . L i u k s i l a q u e s t i o n s t h e r e l e v a n c e o f a s a l e t h a t a l l e g e d l y o c c u r r e d p r i o r t o t h e e n f o r c e m e n t i n q u i r y , 3 R e p l y a t 2 2 , b u t i n d o i n g s o , d o e s n o t a c k n o w l e d g e t h e g o v e r n m e n t ’ s a l l e g a t i o n t h a t t h e b i l l s o f s a l e w e r e d r a f t e d t o r e f l e c t t h a t t h e s a l e o c c u r r e d b e f o r e t h e s h a r e s w e r e s u b j e c t t o d i s t r a i n t

.I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 1

trade reg ister numbers that we re not a ssigne d to the corpor ate e ntities unti l after the purporte d sale, a nd that Mr. L iuksila rece ived re ntal pay ment from a te nant in connec tion with one of the proper ties at issue afte r the da te of the pur ported sale

. I n United States v. Sai-W ah , another

district court consider ed the e x tradition of an individual to Hong Kongto fac e cha rg es of “ Evasion of L iability by Dec eption” for

alleg edly g iving “ post-dated c hecks, w hich wer e later reje cted due to insufficient funds . . . .” 270 F. Supp. 2d 748, 749 (W.D.N.C. 2003). The c ourt reje cted the g overnme nt’s arg ument that the under ly ing fac ts “indicate[d] fraud, which is cle arly criminal under

fede ral lawand the law s of eve ry state,” and cited a

nother c ourt’s pre vious observation that “[t] he proble m with the gove rnment’s a rg uing on this score [in favor of

‘dual c riminality ’] is t hat no prope rty was obtaine d, taken or

withheld by virtue of the issuanc e of the four c hecks upon w hich the wa rra nt’s char g e is premised.” Id. at 751. I n contra st, in In the Matter of the Ex traditi on of Chan Hon-Ming , a cour t cer tified the extraditabilit y

of an individual soug ht by Hong Kong who similarly arg ued that “E vasion of L iability by Dec eption has no ana logous c rime in the United States and is ther efor e not an extraditable offe nse.” N o. 06-296, 2006 WL 3518239, at *1, 4 (E.D.N .Y. Dec . 6, 2006). The court, distinguishing the circ umstances pr esente d in Sai-W ah , found that “the char g e ag ainst Chan stems from the fr audulent misrepr esenta tions he made in conne ction with [ money ] he alre ady owed to SCB as c redit ca rd debt.” Id. at *5. Her e, with re spect to the fir st charg e, the g overnme nt of Finland doe s not merely alleg e that Mr. L iuksila avoided pay ment of his debt. Rather, it alleg es that he de vised transa ctions and made f alse stateme nts in order to g ain financ ial benef it from assets that we re subjec t to dist raint. The unde rsig ned thus conc ludes that this alleg ed conduc t could g ive rise to a c harg e of ma il orI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 2

wire f raud unde r 18 U.S.C. § 1341 or § 1343. Cf. Parsons v. Feathe r , No. 13-01905, 2014 WL 2123983, at *1-2 (D . Or. May 19, 2014) (f

inding that the “ essential cha rac ter” of the off

ense char g ed by

the g overnme nt of Mexico was “e mploy ing de ceit towar d or cr eating a mistaken belief in a nother pe rson in order

to obtain from that per son an objec t of value or profit,” a nd that the “sa me” e ssential char acte r of c onduct is criminalized by our fe dera l wire a

nd mail fraud statutes). The a

bsence of alleg ations conce rning Mr. L iuksila’s use of mail or wir e communication in further ance of the a lleg ed fr audulent sche me does not af fec t the court’s analy sis. See Annex Article 1(A) (3)( b) (“ [A] n offe nse shall be c onsidered a n extraditable offe nse . . . re g ardle ss of whethe r the off ense is one f

or which the United States fede ral law require s the showing of such matter s as interstate tr ansportation, or use of the mails or of othe r fac iliti es af

fec ting inter state or f

oreig n commerc e, such ma tters being mere ly for the pur

pose of establishing jur isdiction in a United States fede ral c ourt[.] ”); see also Sensi , 879 F.2d a t 894 (“[T]he significa

nce of his use of the mails and of interstate tra

nsportation and fa cilities is ‘jurisdictional only ,’ in that it permits him t o be prose cuted unde r fe dera l law.”)

. The unde rsig ned thus conc ludes that the first cha rg e for which Mr. L iuksila is sought is an “e x traditable” offe nse under the g overning trea ty . Howeve r, with respe ct to the sec ond, or alterna tive, char g e of a g g ravated dishonesty by a debtor , the under signe d finds that the alleg ation that Mr. L iuksila transfer red the share s “knowing that due to his alrea dy exis ting a

nd expected financ ial difficulties his act may harm the f

inancial inter ests of his cre ditors,” see Gover nment Ex hibit 2, does not rise to the level of a fra udulent scheme . The unde rsig ned fur ther finds that the limited proffe r by

the g overnme nt of Finland in support of the alternative char g e of ag g rava ted dishonesty

by a debtor is insufficient to allow this court to conclude that the offe nseI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 3

could be pr osecute d under the United States or District of Columbia Code provisions identified by the g overnme nt.

Extradit ion is not precluded by the statut e of lim itation s un der the laws of the Unit ed States or F

inlan d Mr. L iuksila contends that extradition is barred unde r Article 7 of the tre aty beca use the statute of limitations under Finnish law ha s expi red a nd beca use the statue of

limit ations “for

any

corr esponding ” off

ense unde r United States law ha s expi red. Me morandum at 3-7. A rticle 7(2)( a) of the treaty provides that “[e]x tradition shall be re fused if . . . the prosec ution or the enfor ceme nt of the pena lty for the of fense for whic h extradition i s reque sted has bec ome bar red by lapse of time a ccor ding to the la w of the r equesting or re quested State[.] ”

Statute of limit ations under F innish law For the alleg ed off

enses, whic h car

ry a maximum term of inca rce ration of f

our y ear s under F innish law, the statute of limitations is ten y ear s under Chapte r 8, Section 1 of the F innish Criminal Code. Government Exhibit 7. Chapter 8, Sec tion 3 provides that “[c]harg es ar e deeme d to have be en broug ht in a manner interrupting the per iod of limit ation when the pe rson to be prose cuted a s [s ic] been g iven lawf ul notice of the summons or a r equest for his or her punishment has been ma de whe n he or she is personally prese nt at a trial.” Id. Mr. L iuksila submits t hat the alleg ed off ense c onduct took place “more than twelve y ear s ag o,” and tha t the court c annot deter

mine that the statute of limitations is t olled under Chapte r 8, Section 3 bec ause the g overnme nt “has not produc ed compe tent proof in this proce eding to demonstrate that se rvice upon Mr. L iuksila was made.” Memorandum a t 6. I n a letter dated F ebrua

ry 3, 2014, a re prese ntative of the F innish Mini stry of Jus ticeI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 4

proff ere d that under F innish law, the statute of limitations for both offense s was “tolled on June 26, 2009 when Mr. L iuksila was serve d a summons to appear befor e the District Court of Tur ku to answer the cha rg es broug ht ag ainst him.” Governme nt Ex hibit 8. Mr. L iuksila contends that this “unsworn hea

rsay statement” of

fer ed by the g overnme nt “is not competent proof .” Memorandum a t 7. The under signe d need not a ddress the suf ficienc y of the Ministry

of Jus tice’s letter be cause , as the g overnme nt notes, the District Court in Turku found that Mr. L iuksila was “summoned as a

defe ndant to a cour

t session held on 16 November 2009, wher e he f

ailed to appea r,” a nd subsequently

issued a “w arr ant of a

rre st” for Mr . L iuksila. Government Exhibit 2; cf. Y e Gon , 768 F. Supp. 2d at 88-89 ( finding it “inconce ivable” tha t the United States and Mexi co “w ould intend that judicial findings suff icient in themselves in either country would somehow not be suff

icient to war

rant e x tradition from one to the othe r”)

. There fore , upon consideration of the finding of the District Court in Turku, the unde rsig ned conc ludes that Mr. L iuksila was summoned to appea r bef ore the District Court in Turku to answer to the char g es, and that the statute of

limit ations is thus t olled under F innish law.

Statute of limit ations under United States la w The pa rties ar e in ag ree ment that the applica ble statute of limitations for the alleg ed conduct would be five y ear s under United States la w. See Opposition at 19; Reply at 6; see also 18 U.S.C. § 3282 (“Except as otherw ise expressly provided by

law, no per son shall be prosec uted, tried, or punishe d for a ny offe nse, not ca

pital, unless the indictment is found or the information is instit uted within five y ear s next afte r such of fense shall have be en committed.”)

. The last date of the a lleg ed off ense c onduct is J anuar

y 24, 2002. See Gover

nment Ex hibit 2. The g overnme nt of Finland br oug ht the char g es ag ainst Mr. L iuksila, through the application for aI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 5

summons, approx imately five y ear s and nine months later, on O ctober 23, 2007. The United States submits, however , that the statute of limitations would be tolled pursuant to 18 U.S.C. § 3290, which provides that “ [n] o statute of limitations shall ex tend to any person f leeing from justice.” More spe cifica lly , the United States conte nds that Mr. L iuksila’s “abse nce” from the c harg ing jur isdiction “as ea rly as 2005” is suff

icient to toll the statute of limit ations. See Opposition at 19-21. Mr. L iuksila counters that the statute of limit ations cannot be tolled pursuant to sec tion 3290 because “he ha s lived openly in the United States for the entire rele vant per iod,” and “ his where abouts and identity have be en known to both the g overnme nts of Finland a nd the United States.” Me morandum at 5 n.3; see also Reply at 2. Most Ci rcuits to interpre t the lang uag e of se ction 3290 “have conclude d that a per son’s

mere absenc e fr om a jurisdiction is insufficient, by itself, to demonstrate f

light” a nd have he ld that “ther e must be proof

of the pe rson’s intent to avoid ar rest or pr osecution.” United States v. Florez , 447 F.3d 145, 150- 51 (2d Cir. 2006) (c iting ca ses from the 1st, 2nd, 6th, 7th, 9th, 10th, and 11th Circuits); see also id. at 151 (quoting Jhirad v. Fe rrandina , 486 F.2d 442, 444- 45 (2d Cir. 1973)) (“ [I ]n t he conte x t of an e x tradition proce eding , ‘the phra se ‘f leeing from justice’

car ries a c ommon sense connotation that only those persons sha ll be denied the be nefit of the statute of limitations who have abse nted themselves f rom the jurisdiction of the cr ime with t he intent of escaping prosecution. ’”) . Mr. L iuksila relies on ca ses from these Circuits in support of his arg ument that “mer e abse nce” from the c harg ing jur isdiction is i nsufficie nt to toll the statute of limitations, and that the gove rnment must demonstrate intent. See Memorandum a t 5 n.3; Reply at 8-9. This Circuit, however , has not y et adopted suc h a standa rd. I n McG owen v. UnitedI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 6

States , this Ci rcuit, interpr eting the tolling provision now codif ied at sec tion 3290, held that “‘[t] o be a f

ug itive from justice . . . it is not necessar y that the par

ty char g ed should have left the state in which the c rime is alleg ed to have been c ommitt ed, af ter a n indictment found, or for the purpose of

avoiding a prose cution anticipated or beg un, but simpl y

that having within a state committed that which by

laws constitutes a c rime, whe n he is soug ht to be subject to its criminal proce ss to answer f

or his offe nce, he has left its jurisdiction, and is found within the territory of another .’” 105 F .2d 791, 792 (D.C. Cir. 1939). The McG owen Court determined tha t the defe ndant “whe n he lef

t the District afte r committing for g ery , was a ‘per son fleeing

from justice,’ reg ardle ss of his motive in leaving,” and re jected the arg

ument that the def

endant wa s not “fle eing ” bec ause he was inca rce rate d in Virg inia. Id. The Circuit subseque ntly reiter ated its holding. See G reen v . United States , 188 F.2d 48 ( D.C. Cir. 1951) (quoting McG owen , 105 F.2d at 792) (“ ‘The que stion is not whether he re mained out of the D istrict for any particula r re ason, or at a ll; it is enoug h that he did not rema in for thre e y ear s within the District.’”); id. at 49 (finding that the statute of limitations did not run during the appe llant’s “abse nce” from the District of Columbia, and noting tha t “[t] his is true even if he did not, as appar ently he did, leave to avoid prosec ution”); see also Taylor v. United States , 238 F.2d 259, 260 ( D.C. Cir. 1956) (“The contention of a

ppellant that he is entitled to the protec tion of the statute of limitations is fore closed by Gree n v. United States . . . and McG owen v. United States . . . .”). I n United States v. Singleton , this Ci rcuit interpr eted the la ng uag e of se ction 3290 under differ ent circ umstances – the de fenda nt was not alleg ed to have left the c harg ing jur isdiction – and ra tionaliz ed that “[i]t would be neither logic al nor supportive of the policy

underly ing se ction 3290 to interpret the la

w in such a w ay

that one who lea

ves and is found w ithout the jurisdictionI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 7

is ‘flee ing justice ’ re g ardle ss of his intent, while one who ac tively evade s authorities and

conce als himself within the jurisdiction can re ceive the bene fit of the statute of limitations.” 702 F.2d 1159, 1169 ( D.C. Cir. 1983). The Circuit thus found “tha t on the fac ts of th[ e] case, the Gover nment failed to show that [the defe ndant] acted with the intention of avoiding prosec ution,” and thus aff irmed the district cour

t’s dismiss al of the indictment that wa s filed af ter the statute of limitations had run. Id. at 1170. The Court did not revisit the McG owen Court’s holding, c oncluding that it was “unne cessa ry . . . to decide w hether

the rule of

law set for

th in th[ o]se early

case s – that mere a

bsence from the jurisdiction is sufficient to toll the statute – reta ins its vi tality

today .” Id. at 1169 n.32. Ther efor e, under the law of

this Ci rcuit, whe n arg uing tha t the statute of limitations i s tolled pursuant to section 3290, the g overnme nt must demonstrate the defe ndant’s intent to avoid prosec ution if he or she ha s not left the cha rg ing jurisdiction, but is not require d to demonstrate intent if the de fenda nt has left the jurisdiction. See id. at 1169-70; McG owen , 105 F.2d a t 792; see also Florez , 447 F.3d at 151 (c itations omitted) (“Althoug h decisions by the Eig hth and D.C. Circuits sugg est that the spec ific intent to avoid prosec ution is not essential to toll a statute of limitations on account of f light . . . the latter court, a t least, has temper ed this view whe n the evidenc e of f light does not show a ctual depa rture from the jurisdiction.”)

. Her e, the g overnme nt submit s that “[b] y as ea rly as 2005, [Mr. L iuksila] , in acc ordanc e with his own statements, was in the United States, a nd outside of the jurisdiction of F inland . . . .” Opposition at 20. Mr. L iuksila admits that he travele d to the United States in 2005 for

cer tain family

obliga tions, and that he “r eturne d to the United States on a G- 4 Visa” in 2006. Reply at 12-13. As Mr. L iuksila notes, see id. at 9, the McG owen Court’s interpre tation of theI n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 8

tolling provision curta ils the protections aff orded to the a ccuse d in ext radition proce eding s where the individual, give n the nature of the proc eeding s, is alway s absent fr om the char g ing jurisdiction. This court, howe ver, is bound by the Circuit’s interpre tation of section 3290. Mr. 4 L iuksila cites Singleton and United States v. $6,976,934.65 , 554 F.3d 123 ( D.C. Cir. 2009) in support of his contention that the D.C. Circuit has ca lled into question the McG owen Court’s holding. Reply

at 7. Howe ver, in Singleton , the Court declined to over turn the holding in McG owen , see 702 F.2d a t 1169 n.32, and in $6,976,934.65 , the Court applied the Sec ond Circuit’s standard – w hich re quires a show ing of intent – beca

use the unde rly ing c riminal complaint was filed in the Souther n District of Ne w York, see 554 F.3d a t 132-33. Having deter

mined that the statute of limitations was tolled after Mr. L iuksila’s depar

ture from F inland, the under signe d need not c onsider the g overnme nt’s alternative arg ument, see Opposition at 21-23, that Mr. L iuksila ex hibited an intent to avoid prosec ution in Finland. Probable cause to support th e charge As discussed above , an extradition hearing “is not the occ asion for a n adjudication of g uilt or innocence ,” but ra ther, “ a pre liminary examination to determine whethe r a c ase is made out which will justi fy

the holding of

the ac cused a

nd his surrende r to the dema nding na tion.” W ard , 921 F.2d a t 287 (citations omitted) (quoting a nother sourc e) ( internal quotation marks

W h i l e M r . L i u k s i l a c o n t e n d s t h a t s u c h a s t a n d a r d h a s n o t b e e n a p p l i e d b y a c o u r t i n t h e c o n t e x t o f a n 4 e x t r a d i t i o n p r o c e e d i n g , s e e R e p l y a t 9 , t h e u n d e r s i g n e d o b s e r v e s t h a t t h e E i g h t h C i r c u i t , r e v i e w i n g a n e x t r a d i t i o n o r d e r , h e l d t h a t “ t h i s C i r c u i t f o l l o w s t h e a b s e n c e f

r o m t h e j u r i s d i c t i o n t e s t o f f u g i t i v e s t a t u s ; i n t e n t t o a v o i d a r r e s t o r p r o s e c u t i o n i s n o t r e q u i r e d

. ” S e e I n t h e M a t t e r o

f t h e E x t r a d i t i o n o

f A s s a r s s o n , 6 8 7 F

. 2 d 1 1 5 7 , 1 1 6 2 ( 8 t h C i r . 1 9 8 2 ) ( c i t a t i o n o m i t t e d )

. A l t h o u g h t h e C o u r t a l s o d i s c u s s e d t h e d i s t r i c t c o u r t ’ s f i n d i n g s w i t h r e s p e c t t o t h e d e f e n d a n t ’ s i n t e n t , i t d e t e r m i n e d t h a t h e “ i s a f u g i t i v e b e c a u s e h e h a s l e f t S w e d e n . ” I

d

. I n s o d e t e r m i n i n g , t h e C o u r t a c k n o w l e d g e d t h a t “ [ i ] n i n t e r n a t i o n a l e x t r a d i t i o n c a s e s t h e f u g i t i v e i s n e c e s s a r i l y p h y s i c a l l y a b s e n t f r o m t h e r e q u e s t i n g j u r i s d i c t i o n . ” I d

. a t 1 1 6 2 n . 9

.I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 1 9

omitted). This court is thus tasked with “dete rmining if the re is proba ble ca use to hold a defe ndant to answe r for

the commission of an off ense.” Id. (citation omitted). I n the context of a preliminary

hear ing tha

t this court would ty

pically conduct, this Circuit has advised tha t “[p] robable cause signifie s evidenc e suff icient to cause a per son of ordinar y prudenc e and caution to consc ientiously enter tain a re asonable belief of the ac cused’ s g uilt.” Coleman v. Burnett , 477 F.2d 1187, 1202 ( D.C. Cir. 1973) (footnote omitted). I n its application for a

summons and application for e x tradition, the g overnme nt of Finland de scribes the documentar y evidenc e it contends supports the c harg es ag ainst Mr. L iuksila, which includes, inter alia , the distraint protocol for the housing share s at issue, the

rec ord of the e nforc ement inquiry , bills of sale for the housing sha res, tax forms for the corpor ate entities that purportedly

purcha sed the shar es, apa rtment renta l ag ree ment for one of the units associate d with the housing sha res, ba nk statements re flec ting a tenant’s pa

y ment to Mr. L iuksila, and portions of the Tr ade Re g ister documenting the re g istration of the cor porate entities. See Gover nment Ex hibit 2. The g overnme nt of Finland de scribes w hat it contends ea ch piec e of evidenc e will be off

ere d to prove. See id. I t further repr esents that testimonial evidenc e fr om the following individuals supports the charg es: Mika Salonen, who will testify reg arding “the methods of pay

ment for the sa les price s entere d into the acc ount books of the companie s”; Kim Sjoholm , who will testify reg arding “the e nforc ement inquiry situation”; L aura

Poranen, who will testify reg arding her “ renta l of the apa rtment, the landlord, the ba nk acc ount on which the re nt was pa id”; and Ha

nnu Kaijalaine n, who will testify reg arding the cor

porate entities who purportedly

purcha sed the housing share s. See id. Upon consider ation of the a lleg ations ag ainst Mr. L iuksila in the charg ing doc ument –I n t h e M a t t e r o f t h e E x t r a d i t i o n o f A a r n o O l a v i L i u k s i l a 2 0

application for

a summons – supported by ref ere nce to a

compre hensive list of “ora l” and “wr itten” evidenc e, and the proff er of evidenc e in the De cembe r 16, 2009 application for extradition, see Gover

nment Ex hibit 2, the undersig ned finds that the g overnme nt of Finland ha s established proba

ble ca use for the cha rg e of a g g ravated fra

ud by a debtor

. See Y

e Gon , 768 F. 5 Supp. 2d at 89 (citations omitted) (collec ting c ases in which c ourts have f ound the re questing countries’ summaries of e vidence sufficie nt to support a probable cause finding ). I n making its probable cause deter

mination, the court also base s its finding on the photog raph pr ovided by the g overnme nt of Finland to e stablish Mr. L iuksila’s identity , see Gover nment Ex hibit 3, and notes that Mr. L iuksila has not contested the a lleg ation that he is the individual char g ed in Finland.

CONCLUSION For the fore g oing r easons, the c ourt finds that the re quirements for extradition are satisfied. Ac cording ly , the cour t will deny

Mr. L iuksila’s Motion to Dis miss the Crimi nal Complaint and Deny

Finland’ s Ex tradition Request (Doc ument No. 15), a nd will certify

Mr. L iuksila’s ext raditability

as to the cha

rg e of a g g rava

ted fra ud by a debtor . A sepa

rate order and

cer tificate of extraditabilit y

acc ompanies this Memorandum Opinion.

/s/ DEB ORAH A. ROB I

NSON United States Mag istrate Judge

November

7, 2014

H a v i n g c o n c l u d e d t h a t t h e a l t e r n a t e c h a r g e o f a g g r a v a t e d d i s h o n e s t y b y a d e b t o r i s n o t e x t r a d i t a b l e , t h e 5 u n d e r s i g n e d m a k e s n o f i n d i n g w i t h r e s p e c t t o t h a t c h a r g e .