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In the Matter of the Extradition of

May 31, 2011

IN THE MATTER OF THE EXTRADITION OF SARUNAS PABERALIUS


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER

The United States, on behalf of the Republic of Lithuania, seeks the extradition of Sarunas Paberalius, a citizen of Lithuania: (1) to serve a three-year sentence for violating the terms of his supervised release, following his conviction for violating traffic laws causing death of a person; and (2) to face charges in Lithuania for disturbing the peace. After carefully reviewing and considering the documents and materials submitted by the Government and after considering the evidence introduced by Paberalius and the Government at the hearing on this matter, as well as the oral and written arguments by counsel, the Court finds that the Government's evidence falls short of establishing that the crimes for which extradition is requested are covered by the Treaty or establishing probable cause to believe that Paberalius committed the crimes.

I. LEGAL STANDARD

Extradition is a diplomatic process governed by the provisions of the federal ex-tradition statute, 18 U.S.C. § 3181 et seq., and by the relevant treaty-in this case, the Extradition Treaty between the Government of the United States of America and the Government of the Republic of Lithuania, Oct. 23, 2001, U.S.-Lithuania, S. Treaty Doc. 107-4 (entered into force March 31, 2003) ("Treaty"). Both the statute and the Treaty require the country seeking extradition-in this case, Lithuania-to submit a request through proper diplomatic channels. 18 U.S.C. § 3184; Treaty art. 8, ¶ 1. The request must "be supported by sufficient evidence to show that the individual is the person sought for the crimes charged, that the crimes are among those listed as extraditable offenses in the Treaty and that there is sufficient justification for the individual's arrest had the charged crime been committed in the United States." Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir. 1931); accord In re Extradition of Mazur, 2007 WL 2122401, at *1 (N.D. Ill. July 20, 2007). Specifically, the Treaty requires Lithuania to submit: documents, statements, or other types of information which describe the identity, nationality, and probable location of the person sought; information describing the facts of the offense and the procedural history of the case; the relevant text of the provisions of law describing the essential elements of the offense for which extradition is requested; the relevant text of the provisions of law prescribing punishment for the offense; a statement of the provisions of law describing any time limit on the prosecution; a copy of the warrant or order of arrest issued by a judge, court or other competent authority; a copy of the charging document; and such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought. Treaty art. 8,

¶¶ 2--3. If the State Department approves the request, the papers are then for-warded to the U.S. Attorney's office in the district where the person sought may be found; the U.S. Attorney may then file a complaint and seek an arrest warrant from a magistrate judge. Eain, 641 F.2d at 508. If a warrant issues, the magistrate judge then conducts a hearing to determine whether there is sufficient evidence to sustain the charge under the provisions of the treaty. Id.

The authority of a magistrate judge serving as an extradition judicial officer "is limited to determining an individual's eligibility to be extradited, which is done by ascertaining (1) whether the crime is an extraditable offense under the subject treaty and (2) whether probable cause exists to sustain the charge." United States v. Nolan, 651 F. Supp. 2d 784, 790 (N.D. Ill. 2009) (citation omitted); see In re Mazur, 2007 WL 2122401, at * 1 ("An extradition court exercises very limited authority in the overall process of extradition . . . ."); see also 18 U.S.C. § 3184 (providing for ex-tradition "if, on such hearing, [the court] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention"). Thus, a request for extradition will be granted where: (1) the judicial officer has jurisdiction to conduct an extradition proceeding, (2) the court has jurisdiction over the fugitive, (3) the person before the court is the fugitive named in the request for extradition, (4) there is an extradition treaty in full force and effect, (5) the crimes for which surrender is requested are covered by that treaty, and (6) there is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought. In re Extradition of Garcia, 188 F. Supp. 2d 921, 925 (N.D. Ill. 2002) (citing Fernandez v. Phillips, 268 U.S. 311, 312 (1925)); accord Nolan, 651 F. Supp. 2d at 790. "If the magistrate judge determines that the offenses charged are within the treaty's terms and probable cause exists, he is to certify the matter to the Secretary of State, who has sole discretion to determine if the extradition should proceed." Nolan, 651 F. Supp. 2d at 790; see In re Mazur, 2007 WL 2122401, at *1. On the other hand, "should the magistrate determine that the offense charged is not within a treaty's terms or find an absence of probable cause, the magistrate cannot certify the matter to the Secretary of State for extradition." Eain, 641 F.2d at 508.

The hearing contemplated under the extradition statute is not a trial on the merits of the charges, but is more in the nature of a preliminary hearing. Bovio v. United States, 989 F.2d 255, 259 (7th Cir. 1993). "At an extradition hearing, the defendant's right to challenge the evidence introduced against him is quite limited. He can offer evidence that explains the requesting country's proof, but he cannot submit evidence that contradicts it." In re Rodriguez Ortiz, 444 F. Supp. 2d 876, 884 (N.D. Ill. 2006). "To be sure, an extradition proceeding is a strange bird: it is not a criminal proceeding, though it involves criminal conduct; and, although it is a federal court hearing, neither the federal rules of criminal procedure, nor the federal rules of evidence applies. An extraditee is not permitted to present a 'defense' in the sense that we typically apply that term; he may rebut probable cause and he may explain the evidence offered by the extraditing country. Evidence that 'explains away or completely obliterates probable cause' is admissible; evidence that 'merely controverts the existence of probable cause' is not." In re Mazur, 2007 WL 839982, at *3. "The distinction between 'contradictory evidence' and 'explanatory evidence' is difficult to articulate. However, the purpose behind the rule is reasonably clear. In admitting 'explanatory evidence,' the intention is to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause. The scope of this evidence is restricted to what is appropriate to an extradition hearing. The decisions are emphatic that the extraditee cannot be allowed to turn the extra-dition hearing into a full trial on the merits." In re Sindona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978); see Lindstrom v. Gilkey, 1999 WL 342320, at *5 (N.D. Ill. 1999) ("The court must seek to distinguish between 'contradictory,' which is not admissible, and 'explanatory' evidence, which is admissible"); In re Guillen, 1991 WL 149623, at *8 (N.D. Ill. 1991) ("The accused in an extradition hearing is not entitled to contradict the demanding country's proof or pose questions of credibility, but is limited to offering evidence which explains or clarifies that proof."). Nevertheless, the scope of evidence admitted is left to the sound discretion of the court, guided by the distinction between "contradictory" and "explanatory" evidence. Charlton v. Kelly, 229 U.S. 447, 456 (1913); accord Hooker v. Klein, 573 F.2d 1360, 1369 (9th Cir. 1978).

II. BACKGROUND

A. Procedural History

On July 22, 2010, the United States filed a complaint seeking the provisional arrest and extradition of Sarunas Paberalius, and a warrant for his arrest was issued.

Paberalius was arrested on August 2, 2010. Since that time, he has been detained at the Metropolitan Correctional Center, pursuant to Article 11 of the Treaty.

The United States, acting on behalf of the Republic of Lithuania, filed a formal request for extradition on August 2, 2010. The filing included various documents submitted by Lithuania in accordance with the Treaty. On December 20, 2010, the Government filed an amended complaint, charging Paberalius with two extraditable offenses:

Paberalius was convicted of violating Paragraph 4 of Article 246 of the Criminal Code of the Republic of Lithuania (violation of the Road Traffic Regulations or rules of exploitation of the means of transport causing death of a person) on December 22, 1999 and sentenced to imprisonment for a term of three years by the District Court of the Region of Kėdainiai. . . . The court, however, suspended the sentence for a two-year period on the following conditions: (1) Paberalius was prohibited from changing his place of residence without notice; and (2) Paberalius was required to pay compensation for the damage caused by the crime by December 31, 2000. According [to] Lithuanian authorities, Paberalius failed to comply with these conditions, in particular, Paberalius changed his place of residence without notice and hid. Therefore, on March 22, 2001, the District Court of the Region of Kė-dainiai directed Paberalius to serve the custodial sentence.

On September 21, 1999, the Police Commissariat of Kėdainiai Region instituted a criminal case against Paberalius under Paragraph 2 of Article 225 of the Criminal Code of the Republic of Lithuania (Hooliganism). Subsequently, on February 4, 2010, the District Prosecutor of the Kėdainiai Region entered a decision recognizing Paberalius as a suspected violator of Paragraph 1 of Article 284 of the Criminal Code of the Republic of Lithuania (Violation of Public Order) and, on March 2, 2010, the District Court of the Region of Kėdainiai imposed a measure of constraint/arrest on Paberalius. (Am. Compl. ¶¶ 5, 8.) On January 18, 2011, the Government, on behalf of Lithuania, filed additional documents in support of its request for extradition.

Paberalius opposes the Government's request for extradition, filing a Memorandum of Fact and Law Contesting Extradition on March 21, 2011 ("Opp'n"). On April 4, 2011, the Government filed a Memorandum in Support of Extradition ("Reply").

The Court conducted a hearing on May 12, 2011. The exhibits attached to the Government's Reply (Exs. A--G) were admitted without objection. In addition, the Government submitted four documents from the Secretary of State's website (Exs. H--K), which were admitted without objection. The exhibits attached to Paberalius's Opp'n were admitted over the Government's continuing objection as to the scope of the hearing.*fn1 Paberalius also submitted four letters in support of his opposition to the extradition request, which were admitted without objection.

B. Evidence Before the Court

1. Background

Sarunas Paberalius is a native and citizen of Vilnius, Lithuania. (Paberalius Aff. ¶ 1; Hr'g Tr. 19.)*fn2 In July 1991, he began working for the Lithuanian Interior System as a Criminal Law Officer and in various other elite police subdivisions. (Id. ¶ 2.) He later applied to work for the Lithuanian Secret Service but was not accepted. (Hr'g Tr. 21.)

In August 1997, Paberalius began working for the Agency of Sovereign Counselors (initials "NPA"), a private security firm which protected affiliates, managers, employees, and guests of Vikonda, a large Lithuanian company owned by Victor Uspaskich, a Russian-born person with alleged ties to the Russian KGB. (Paberalius Aff. ¶¶ 4, 6.) Uspaskich was also employed by the Russian company Gasprom, one of the largest oil companies in the world. (Id. ¶ 4.) Paberalius's primary duty was providing security for Uspaskich. (Id. ¶ 6.) Because the Lithuanian government was interested in learning more about the activities of Uspaskich and his company, Paberalius was asked by the Lithuanian Secret Service to work undercover for the Lithuanian government while maintaining close contact with Vikonda through the NPA. (Id. ¶ 4.) As he was interested in obtaining permanent employment with the Secret Service, Paberalius accepted the opportunity. (Id. ¶ 5.)

By February 1998, Paberalius began to suspect that his undercover work on behalf of the Secret Service had been compromised. (Paberalius Aff. ¶ 6.) On two separate occasions, Paberalius was physically attacked by a group of men. (Id. ¶¶ 7--8.) On both occasions the attackers were arrested, but the authorities declined to prosecute. (Id.) On the night of October 22, 1999, a warhead grenade was thrown into the bedroom window of Paberalius's apartment in Kėdainiai. (Id. ¶ 9.) The grenade exploded in his bedroom causing massive damage, but Paberalius was not in the room at the time of the explosion. (Id.) Shortly thereafter, Uspaskich ordered the Director of the NPA to transfer Paberalius back to Vilnius or fire him. (Id. ¶ 11.) Before he was transferred, Paberalius maintains that two false charges were brought against him. (Id. ¶ 12.) These two charges form the basis of the extradition request in this case.

Given the violent attacks against him, the failure of police to pursue those cases, and the trumped up charges against him, Paberalius believed that his safety was in serious peril. (Paberalius Aff. ¶ 13.) Through his work with the Lithuanian government he personally knew Vytautas Landsbergis, who was the first president of the Lithuanian Republic. (Id.) Landsbergis utilized his influence to get Paberalius an American visa in one day. (Id.) Paberalius left for the United States in December 2000 where he has resided since. (Id.; see Hr'g Tr. 33--34.) During his time in the United States, Paberalius has worked and paid taxes. (Hr'g Tr. 34.)

Paberalius has applied for asylum in the United States. (See Hr'g Tr. 35.) Under extradition law, however, this Court cannot consider the adverse treatment that could await Paberalius if he were extradited to Lithuania. In re Mazur, 2007 WL 839982, at *3 (rule of noninquiry precludes extradition court from considering the procedures or treatment that await the relator in requesting state); United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997) ("More than just a principle of treaty construction, the rule of non-inquiry tightly limits the appropriate scope of judicial analysis in an extradition proceeding. Under the rule of non-inquiry, courts refrain from investigating the fairness of a requesting nation's justice system and from inquiring into the procedures or treatment which await a surrendered fugitive in the requesting country.") (citation omitted). Instead, "it is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds." Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990); see Masopust v. Fitzgerald, 2010 WL 324378, at *2 (W.D. Pa. Jan. 21, 2010) ("In extradition proceedings, the Secretary of State conducts an independent review of the case to determine whether to issue a warrant of surrender. The Secretary exercises broad discretion and may properly consider factors affecting both the individual defendant as well as foreign relations-factors that may be beyond the scope of the magistrate judge's review.") (citation omitted); Kin-Hong, 110 F.3d at 111 ("It is not that questions about what awaits the relator in the requesting country are irrelevant to extradition; it is that there is another branch of government, which has both final say and greater discretion in these proceedings, to whom these questions are more properly addressed.")

2. Traffic Violation

On March 19, 1998, Paberalius was driving an NPA vehicle in Vilnius, Lithuania, providing security while the security guards in the car in front of his collected cash from various supermarkets. (Hr'g Tr. 37--38.) When the two vehicles arrived at a supermarket, Paberalius and the other NPA employee in his vehicle were the first ones to step out and make sure the area was secure. (Id. 59.)

By 6:00 to 7:00 in the evening, Paberalius had been on duty for approximately 24 hours. (Hr'g Tr. 58.) Although it was dark out, the weather was clear. (Id. 38--39.) While Paberalius was driving on J. Basanavičius Street at approximately 40 km/h (25 mph), a car suddenly pulled out from Tiltas Street, crossing Paberalius's travel path and causing him to slow down. (Id. 38--40; Reply Ex. F ("Judgment")*fn3 at 1, 2, 4, 6, 7.) Paberalius traveled through the intersection in the center lane, which was designated for left turns only, moved into the right lane, and stopped abruptly.*fn4

(Judgment 1--3.) In so doing, Paberalius blocked the path of a bus, which was driving at approximately 30--35 km/h (19--22 mph). (Id.) To avoid a collision, the bus driver braked suddenly and ...


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