November 27, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:18-CV-3061 -
Virginia M. Kendall, Judge.
Bauer, Hamilton, and Barrett, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
seeks extradition of petitioner Neringa Venckiene from the
United States to prosecute her for several alleged offenses
arising from a custody battle over Venckiene's niece.
After a hearing pursuant to 18 U.S.C. § 3184, a
magistrate judge certified Venckiene as extraditable and the
Secretary of State granted the extradition. Venckiene moved
the magistrate judge for a temporary stay of her extradition,
which was granted. She then filed a petition for a writ of
habeas corpus in the district court challenging both the
magistrate judge's certification order and the
Secretary's decision. She also asked the district court
to stay her extradition, but the district court denied that
habeas corpus petition, Venckiene claims the magistrate judge
erred in two ways: failing to apply the political offense
exception in the Lithuania-United States extradition treaty
to her case, and finding probable cause that she was guilty
of the offenses charged. Venckiene also claims that the
Secretary of State's decision to grant the extradition
violated her constitutional right to due process and failed
to consider that Venckiene might be subject to what we have
called "particularly atrocious procedures or
punishments," see In re Burt, 737 F.2d 1477,
1487 (7th Cir. 1984), if she is returned to Lithuania.
appeal challenges directly only the district judge's
denial of Venckiene's request to extend the stay of her
extradition, but that challenge necessarily implicates the
merits of her habeas petition. We affirm the district
court's denial of a stay. In Part I, we explain the
extradition process, including the applicable treaty
provisions and the limited scope of the judicial role. In
Part II, we summarize what we know about events in Lithuania
leading to this case. In Part III, we review the United
States legal proceedings thus far. In Part IV, we analyze the
legal issues presented, considering in Part IV-A
Venckiene's challenges to the magistrate judge's
order and in Part IV-B her challenges to the Secretary's
decision, and finally in Parts IV-C and IV-D other factors
relevant to Venckiene's stay request.
The Extradition Process
The Lithuania-U.S. Extradition Treaty
extradition is first and foremost a creature of treaties.
Under the extradition treaty between the United States and
Lithuania, an offense is extraditable "if it is
punishable under the laws in both States by deprivation of
liberty for a period of more than one year or by a more
severe penalty." Extradition Treaty, Lithuania-United
States, art. II, § 1, March 31, 2003, T.I.A.S. No.
13166. The treaty makes an exception, however, "if the
offense for which extradition is requested is a political
offense," art. IV, § 1, a term not defined in the
treaty. The treaty also specifies what the requesting party
must provide to obtain extradition of a person accused of an
3. A request for extradition of a person who is sought for
prosecution also shall include:
(a) a copy of the warrant or order of arrest issued by a
judge, court, or other authority competent for this purpose;
(b) a copy of the charging document; and
(c) such information as would provide a reasonable basis to
believe that the person sought committed the offense for
which extradition is sought.
VIII, § 3.
The Judicial Role in Extradition
judicial branch plays a central but limited role in the
extradition process, as laid out in statutes and case law.
See 18 U.S.C. §§ 3184-3195; Burgos Noeller v.
Wojdylo, 922 F.3d 797, 802 (7th Cir. 2019); Eain v.
Wilkes, 641 F.2d 504, 508 (7th Cir. 1981). The process
begins when a foreign government makes a formal request to
the United States government through diplomatic channels.
That request is forwarded to the Department of Justice, which
then ordinarily files a complaint and seeks an arrest warrant
from a judge. Burgos Noeller, 922 F.3d at 802.
person targeted by the request is entitled to a hearing
before a judge pursuant to 18 U.S.C. § 3184. The scope
of inquiry at this hearing is limited: "the
'judicial officer's inquiry is confined to the
following: whether a valid treaty exists; whether the crime
charged is covered by the relevant treaty; and whether the
evidence marshaled in support of the complaint for
extradition is sufficient under the applicable standard of
proof.'" Skaftouros v. United States, 667
F.3d 144, 154-55 (2d Cir. 2011), quoting Cheung v. United
States, 213 F.3d 82, 88 (2d Cir. 2000). If the judge
finds that these three conditions have been satisfied and the
accused is extraditable, the judge must certify the
extradition to the Secretary of State. The court has no
discretion. See Burgos Noeller, 922 F.3d at 803;
Santos v. Thomas, 830 F.3d 987, 992 (9th Cir. 2016)
Secretary of State has 'sole discretion to determine
whether or not extradition should proceed further with the
issuance of a warrant of surrender.'" Burgos
Noeller, 922 F.3d at 803, quoting Eain, 641
F.2d at 508; see 18 U.S.C. § 3186. In making this
decision, the Secretary is authorized to consider factors
that United States federal courts in extradition cases cannot
take into account. The executive branch has sole authority to
consider issues like the political motivations of a
requesting country and whether humanitarian concerns justify
denying a request. See Burgos Noeller, 922 F.3d at
808; Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir.
the Secretary of State's extradition decision is not
subject to judicial review. This circuit and others, however,
have recognized an exception through which courts can, at
least in theory, consider claims that "the substantive
conduct of the United States in undertaking its decision to
extradite ... violates constitutional rights." Burt,
737 F.2d at 1484; see also Martin v. Warden,
993 F.2d 824, 829 (11th Cir. 1993) (recognizing that
constitutional rights are superior to treaty obligations, but
finding no violation of constitutional rights in long-delayed
extradition request); Plaster v. United States, 720
F.2d 340, 349 (4th Cir. 1983) (recognizing constitutional
claims but vacating grant of writ of habeas corpus). We said
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.
737 F.2d at 1487 (internal citations omitted) (affirming
denial of writ of habeas corpus).
the applicable statutes, the accused may not appeal directly
a judge's order to certify her for extradition, but case
law has long recognized a limited form of appellate review
through a petition for a writ of habeas corpus. See
Collins v. Miller, 252 U.S. 364, 368-69 (1920);
Burgos Noeller, 922 F.3d at 803; Eain, 641
F.2d at 508; In re Assarsson, 635 F.2d 1237, 1240-41
(7th Cir. 1980).
habeas corpus cases, however, courts generally may consider
only "whether the magistrate had jurisdiction, whether
the offence 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," i.e., probable cause. DeSilva v.
DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997)
(reversing writs of habeas corpus), quoting Fernandez v.
Phillips, 268 U.S. 311, 312 (1925). Under this probable
cause standard, the judge must "determine whether there
is competent evidence to justify holding the accused to await
trial." Sidali v. I.N.S., 107 F.3d 191, 199 (3d
Cir. 1997), quoting Peters v. Egnor, 888 F.2d 713,
717 (10th Cir. 1989). It is not the magistrate's role,
however, "to determine whether the evidence is
sufficient to justify a conviction." Id. That
is the job of the requesting country's courts.
The Events in Lithuania
applying political offense exceptions to extradition
treaties, factual details matter, so we review events in some
detail. Neringa Venckiene worked as a judge in Lithuania from
1999 until 2012. Her brother was Drasius Kedys. Kedys had a
daughter with his then-girlfriend Laimute Stankunaite. As of
2008, the couple had separated and Kedys had full custody of
their daughter, Venckiene's niece. Sometime in 2008, when
she was four years old, the girl told her grandmother that
she was being sexually abused by three men. The men were
eventually identified as public officials: Andrius Usas, an
assistant to the Speaker of the Lithuanian parliament, Jonas
Fur-manavicius, a Kaunas Regional Court Judge, and Vaidas
Milinis, the President of the Kaunas Regional Court.
enforcement authorities were notified about the girl's
claims, but according to Venckiene, "the case was
purposefully delayed, investigations and complaints were
ignored, and the case shifted hands for months." In
response to these delays, Venckiene wrote a book about the
pedophilia case and its stagnated investigation entitled
Drasius's Hope to Save the Girl. Venckiene
believes that what her niece experienced was part of a larger
pedophilia network in Lithuania. She thinks that the
Lithuanian network is related to a pedophilia scandal that
took place in Latvia in 2000 and in which several
high-ranking officials participated.
October 5, 2009, Furmanavicius and Stankunaite's sister
were murdered. Lithuanian authorities suspected Kedys of
committing these crimes, but Kedys himself disappeared soon
after that. His body was eventually discovered on the bank of
a lagoon. The government declared his death accidental,
caused by alcohol-induced asphyxiation, but Venckiene asserts
that an independent criminologist found no alcohol in
Kedys's system. Venckiene was awarded custody of his
daughter, her niece, pending resolution of the pedophilia
case. In June 2010, Usas was also found murdered.
continued to criticize corruption in Lithuania. On November
17, 2010, in a conversation with journalists, she publicly
condemned the Lithuanian court system for its corruption. She
asserts that the chairman of the Lithuanian Judicial Council
censured her for her comments and subjected her to ethical
hearings based on a charge of insulting or humiliating the
court. She further asserts that a pretrial investigation into
whether she had actually broken any laws through these
comments was discontinued in January 2011 after the
prosecutor found no evidence to suggest that she had broken
the law. Venckiene says, however, that in February 2011, the
head of the Judicial Council successfully petitioned to
extend the statute of limitations on this charge of
"humiliating the court." In 2012, these comments
were cited to support revoking Venckiene's judicial
immunity. According to Lithuania, at some point in 2010,
Venckiene also conducted illegal surveillance on public
individuals she suspected of pedophilia and Stankunaite.
December 16, 2011, a court ordered Venckiene to return her
niece to the custody of her niece's mother, Kedys's
former girlfriend, Stankuanaite. The court ordered the
transfer on two separate occasions. Both times the girl
refused to go with her mother. On March 23, 2012, Stankunaite
came to Venckiene's home with a bailiff and about 25
police officers to execute the court's order and take
back her daughter. The attempt was unsuccessful, and the girl
was traumatized by the incident. A video recording of the
attempted seizure was posted to the internet and received
national attention. The story alerted the public to the
pedophilia incidents. Hundreds of people began camping out
around Venckiene's home to help protect the girl.
17, 2012, the police again attempted to remove the girl from
Venckiene's home. The criminal charges against Venckiene
relevant to this appeal are based on the events of that date.
Venckiene describes the encounter as violent. She says that
officers broke down her door and physically removed her niece
from her lap before covering the girl's face with a
blanket soaked in psychotropic substances intended to subdue
her. Venckiene reports that she and several protesters went
to the hospital seeking treatment for injuries inflicted by
the officers. The police officers who executed the custody
transfer described Venckiene as aggressive and hysterical.
They said that she refused to allow the officers to
communicate with the girl and even punched one officer in the
her niece was removed, Venckiene became more outspoken. She
published another book, Way of Courage, which
covered the pedophilia case and leveled criticisms against
the Lithuanian judicial system, prosecution, and courts. On
June 26, 2012, Venckiene's judicial immunity was revoked.
She then resigned from her judicial position and became
politically active. Her second book had inspired the creation
of Way of Courage, a political party that organized protests,
circulated petitions, and fostered dialogues on internet
forums and blogs. Venckiene became the face of the party
during its campaign for the October 2012 parliamentary
election in Lithuania. Way of Courage won seven seats in the
election; Venckiene was elected the party's chair.
Venckiene's political tenure was short-lived. The
prosecutor general petitioned the Lithuanian ...