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Venckiene v. United States

United States Court of Appeals, Seventh Circuit

July 15, 2019

Neringa Venckiene, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued November 27, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:18-CV-3061 - Virginia M. Kendall, Judge.

          Before Bauer, Hamilton, and Barrett, Circuit Judges.


         Lithuania 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 request.

         In her 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.

         This 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.

         I. The Extradition Process

         A. The Lithuania-U.S. Extradition Treaty

         International 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 extraditable offense:

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.

         Art. VIII, § 3.

         B. The Judicial Role in Extradition

         The 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.

         The 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) (en banc).

         "The 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. 2006).

         Generally, 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 in Burt:

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).

         Under 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).

         In such 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.

         II. The Events in Lithuania

         In 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.

         Law 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.

         On 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.

         Venckiene 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.

         On 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.

         On May 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 face.

         After 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 ...

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