United States v. Manuel Dikran Sassounian

1 JS-6 [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 UNITED STATES OF AMERICA, Case No. 2:19-cv-02455-CJC-AFM 12 Plaintiff, v. MEMORANDUM OPINION [13] AND ORDER GRANTING 14 MANUEL DIKRAN SASSOUNIAN, THE GOVERNMENT’S REQUEST TO CERTIFY EXTRADITION 15 A Fugitive from the Government 16 of the Republic of Lithuania. [18] 19 I. BACKGROUND 20 On April 1, 2019, the United States of America (“United States” or the 21 “government”), acting on behalf of the Republic of Lithuania (“Lithuania”), filed a 22 request for the extradition to Lithuania of Manuel Dikran Sassounian (“Sassounian” 23 or “Relator”) (ECF No. 19), under the extradition treaty between the United States 24 and Lithuania (“Treaty”) (ECF No. 19 at 15-24). On the same date, the matter was 25 referred to the undersigned magistrate judge. The Court is in receipt of a formal 26 request for extradition, including supporting documentation submitted by Lithuania. 27 On June 10, 2019, the government filed its extradition memorandum. (ECF No. 35.) 28 The government asserts that Relator should be extradited to Lithuania to stand trial 1 for (1) Forgery of a Document, in violation of Article 300(1) of the Lithuanian 2 Criminal Code (“LCC”); (2) Swindling, in violation of Article 182(2) of the LCC; 3 and (3) Violating Public Peace and Order, in violation of Article 284(1) of the LCC. 4 After receiving several extensions, Relator filed his brief in opposition to the request 5 for extradition on January 10, 2020. The government filed a reply on February 3, 6 2020. An extradition hearing was held on February 11, 2020, at which Relator 7 appeared with counsel. 8 The Court has carefully reviewed the totality of the evidence presented and, 9 for the reasons stated below, finds that the government has established the 10 requirements for a certificate of extradition, including probable cause that Relator 11 committed the charged offenses. Accordingly, the government’s request for 12 certification of extradition is granted. 13 II. STANDARD FOR OBTAINING A CERTIFICATE OF EXTRADITION 14 Extradition from the United States is governed by 18 U.S.C. § 3184 . That 15 statute confers jurisdiction on “any justice or judge of the United States, or any 16 magistrate judge authorized so to do by a court of the United States” to conduct an 17 extradition hearing under the relevant extradition treaty and to issue a certificate of 18 extradition to the Secretary of State. In the Central District of California, magistrate 19 judges are authorized by general order to preside over extradition proceedings. See 20 C.D. Cal. Gen. Ord. 05-07. 21 To obtain a certificate of extradition on behalf of a requesting state, the 22 government has the burden of showing the following elements: (1) the court has 23 jurisdiction to conduct the extradition proceedings; (2) the court has jurisdiction over 24 the relator; (3) a valid extradition treaty between the requesting state and the United 25 States is in full force and effect; (4) the relator is charged with having committed a 26 criminal offense within the jurisdiction of the requesting state; (5) the charged offense 27 is extraditable under the relevant extradition treaty; and (6) competent evidence 28 establishes probable cause to believe that the person named in the extradition request 1 committed the charged offense. See 18 U.S.C. §§ 3184 , 3190; Prasoprat v. Benov, [2] 421 F.3d 1009, 1013 (9th Cir. 2005). “After an extradition magistrate certifies that 3 an individual can be extradited, it is the Secretary of State,representing the executive 4 branch, who ultimately decides whether to surrender the fugitive to the requesting 5 country.” Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). 6 III. UNDISPUTED AND DISPUTED ISSUES 7 Based on the parties’ written submissions and the statements of counsel at the 8 hearing, the following elements for extraditionareundisputedin this case: The Court 9 has jurisdiction to conduct this extradition proceeding and has personal jurisdiction 10 over the Relator. An extradition treaty between the United States and Lithuania is 11 valid and is in full force and effect. The Relator is charged with having committed 12 criminal offenses within the jurisdiction of Lithuania. The charged offenses of 13 forgery and swindling are extraditable under the Treaty. 14 Two elements of extradition are disputed here: whether the charged offense 15 of violating public peace and order is extraditable under the Treaty and whether 16 competent evidence establishes probable cause to believe that Relator committed the 17 charged offenses of forgery, swindling, and violation of public peace and order. 18 Those elements are addressed below. 19 IV. EXTRADITABILITY OF THE OFFENSE OF VIOLATING PUBLIC 20 PEACE AND ORDER UNDER THE TREATY 21 Article 2 of the Treaty defines extraditable offense as one “punishable under 22 the laws of both States by deprivation of liberty for a period of more than one year 23 or by a more severe penalty.” Both sides agree that the charge of violation of public 24 peace and order under Lithuanian law corresponds to a misdemeanor under 25 California law and thus, by itself, is not an extraditable offense under the Treaty. 26 However, Article 2, paragraph 5 of the Treaty provides that, “If extradition has been 27 granted for an extraditable offense it shall also be granted for any other offense 28 specified in the request . . . provided that all other requirements for extradition are 1 met.” (ECF No. 19 at 16.) Therefore, if the Court certifies that Relator is extraditable 2 for swindling or forgery, it may also do so for violating public peace and order, 3 assuming all other requirements are met. This conclusion is consistent with the 4 position taken by the government in its briefing, and it was agreed to by Relator at 5 the hearing. 6 V. ASSESSMENT OF PROBABLE CAUSE 7 The question of probable cause asks whether there is “evidence warranting the 8 finding that there was a reasonable ground to believe the accused guilty.” 9 Mirchandani v. United States, 836 F.2d 1223, 1226 (9th Cir. 1988). Probable cause 10 means a “fair probability” that the suspect has committed the charged crime, Garcia 11 v. Cty. of Merced, 639 F.3d 1206, 1209 (9th Cir. 2011), and the burden of 12 demonstrating its existence rests with the government, Barapind v. Enomoto, 400 13 F.3d 744, 747 (9th Cir. 2005) (per curiam). Evidence in support of an extradition 14 request need not be admissible at a later trial. See, e.g., Then v. Melendez, 92 F.3d 15 851, 855 (9th Cir. 1996) (noting that rules of evidence do not apply in extradition 16 context). An extradition court may consider credibility of proffered evidence and 17 weight to give it. See Quinn v. Robinson, 783 F.2d 776, 815 (9th Cir. 1986). 18 The evidence presented by the government on the charges of forgery and 19 swindling is found at ECF No. 19 at 43-46 (affidavit of Lithuanian prosecutor).1 The 20 evidence on the charge of violation of public peace and order is found at ECF No. 19 21 at 55-99. The documents submitted by the government in support of the request for 22 extradition have been properly authenticated pursuant to 18 U.S.C. § 3190 . It is not 23 disputed that Relator is the individual for whom extradition is sought by Lithuania. 24 A. Swindling and Forgery 25 Swindling under Lithuanian law requires proof that a person “by deceit . . . 26 acquires another’s property of a high value . . . .” (ECF No. 19 at 34.) Forgery under [27] 1 The government has also submitted the results of the Lithuanian pre-trial investigation and its 28 detention order. (ECF No. 19 at 48-49, 51-53.) 1 Lithuanian law requires proof that a person “produces a false document, forges a 2 genuine document or stores, transports, forwards, uses or handles a document known 3 to be false or a genuine document known to be forged.” (ECF No. 19 at 34.) Thus, 4 to prove this charge, Lithuania must show that Relator prepared or provided a false 5 or forged document. 6 It is alleged that Relator swindled $123,030.58 from J.V. and O.V. in 7 Lithuania. The evidence presented by the government in paragraphs 1 and 2 of the 8 prosecutor’s affidavit (ECF No. 19 at 43-44) shows that Relator encouraged J.V. and 9 O.V. to invest in a plot of land that he said contained gold deposits. Relator told J.V. 10 and O.V. that the investment would be part of a secret project of a company headed 11 byhis daughter,that the investmentwould be safe,andthat it would yielda very high 12 rate of return (“thousands of percent”). Based on Relator’s representations, J.V. and 13 O.V. decided to make the investment, mortgaged their home, took out a bank loan, 14 and transferred the funds to Relator’s bank account on October 22, 2007. The false 15 document that Relator allegedly forged or provided is not itself included in the 16 evidence, but a portion of it is quoted in the prosecutor’s affidavit. (ECF No. 19 at 17 44.) The document is dated October 24, 2007 and, on its face, is stated to be from 18 “B.E. Investment Group” in California. 19 According to paragraph 5 of the prosecutor’s affidavit, the bank records of J.V. 20 show that he made an international funds transfer in the amount of $123,030.58 to 21 Relator’s Wells Fargo Bank account on October 22, 2007. For over two years 22 thereafter, Relator did not deliver confirming documents to J.V. and O.V.; instead, 23 Relator told J.V. and O.V. their investment was safe, profits were growing, and they 24 had nothing to worry about. On March 9, 2010, J.V. visited Relator at his home in 25 Lithuania, and Relator provided him with the document from “B.E. Investment 26 Group” of “California USA” dated October 24, 2007. This document referred to the 27 approximate amount invested by J.V. and stated that Relator was also allocating 28 $152,000 of his funds to complete J.V.’s investment. The document included a 1 || handwritten note dated August 6, 2008 from Relator to his daughter (Charlotte), 2 || which — consistent with his prior representation that his daughter headed the 3 || investment firm — asked if she “could please take care of this,” i.e. the reallocation 4 || of shares. 5 Paragraphs 6 and 7 of the prosecutor’s affidavit (ECF No. 19 at 45) state that 6 || based on information provided by the U.S. Department of Justice, Office of 7 || International Affairs and by Interpol, a business search was conducted for “B.E. 8 || Investment Group,” and no company was found with that name. In addition, no 9 || company named “B.E. Investment Group” was registered to do business in California 10 || at the address listed on the document provided to J.V. by Relator. While companies 11 || named “B.E. Overseas Investment Group LLC” and “B&E Investments LLC” were 12 || identified, neither was reported to have any relation with Relator or his family, and 13 || the latter company was closed in 2004. 14 According to paragraph 3 of the prosecutor’s affidavit, Relator’s friend E.V. 15 || obtained a copy of the B.E. Investment Group document from a facsimile machine 16 || in a house she shared with him in Lithuania. E.V. also determined that Relator’s 17 || daughter was not the head of a firm but was employed in a school. 18 Paragraph 10 of the prosecutor’s affidavit (ECF No. 19 at 46) provides that 19 || Relator was interviewed at his home in California. During that interview, Relator 20 || admitted to knowing J.V., but stated that he did not receive any money from J.V. and 21 || “the story that J.V. had given him money was made up.” 22 Based on the evidence in the prosecutor’s affidavit, there are reasonable 23 || grounds to believe that Relator used deceit to convince J.V. and O.V. to send him 24 || substantial funds in October 2007. Relator falsely stated that he would “invest” their 25 || money in land with gold reserves through a firm headed by his daughter — even 26 || though the investment firm did not exist and his daughter worked as a school teacher, 27 || not the head of a firm. J.V.’s repeated requests for written confirmation of the 28 || investment were then avoided, until Relator created a false receipt from the sham 1 “B.E. Investment Group” and provided it to J.V. in March 2010. Relator also added 2 a handwritten note to the receipt asking his daughter (apparently as purported head 3 of the fake firm) to move shares within the company to complete J.V.’s investment. 4 Later,duringa law enforcement interview, Relator admitted knowing J.V. but denied 5 receipt of any funds from J.V., despite bank records of J.V. reflecting the transfer of 6 $123,030.58 to Relator’s Wells Fargo Bank account on October 22,2007. In totality, 7 this evidence shows more than a fair probability that Relator committed the crimes 8 of swindling and forgery. 9 While Relator challenges the credibility of witnesses referenced in the 10 prosecutor’s affidavit, the Court finds the evidence regarding swindling and forgery 11 to be generally consistent, corroborated in part and not indicative of lack of witness 12 credibility. For example, bank account records confirmed that J.V. and O.V. sent 13 their money to Relator in October 2007, and even the B.E. Investment receipt that 14 Relator prepared for J.V. stated this. Similarly, while Relator questions how E.V. 15 could have learned that his daughter worked at a school rather than as head of an 16 investment firm, this fact was separately confirmed by Relator himself during 17 briefing on the issue of detention. (See ECF No. 23 at 17.) Moreover, Relator 18 challenges the basis of the evidence in paragraphs 5, 8 and 9 of the affidavit 19 concerning a check from Relator to S.S.T. or K.T. dated October 30, 2007. This 20 evidence was apparently included to show that Relator used the proceeds of his fraud 21 to pay off another debt. Yet, as pointed out by the government, evidence of how 22 Relator used the proceeds is not required to establish the crime of swindling. Once 23 Relator obtained funds from J.V. and O.V. based on deceit, the crime was complete 24 under Lithuanian law, and Relator’s challenge to the evidence about what 25 subsequently happened tothe moneydoes not alterthe probable cause determination. 26 Finally, Relator argues that there is no evidence he knew B.E. Investment 27 Group was a sham company when he dealt with J.V. and O.V., essentially arguing 28 the government has failed to show that Relator intended to defraud the victims. The 1 Court disagrees. Relator’s fraudulent intent or deceit is evidenced in the prosecutor’s 2 affidavit by (i) Relator’s false representations to J.V. and O.V. that their funds would 3 be invested in a firm headed by his daughter, (ii) his attempt over several years to 4 avoid providing a written receipt to J.V. and O.V. for their investment, (iii) his 5 eventual creation of a fake receipt that included the name of a non-existent company 6 “B.E. Investment Group,” and (iv) his later denial of receiving funds from J.V. Based 7 on this evidence, there is ample basis to believe that Relator intended to defraud J.V. 8 and O.V. from the beginning of his discussions with them about a possibleinvestment 9 and that he always knew the entity “B.E. Investment Group” did not exist. 10 Insum, the totality of evidence establishesprobable cause that Relator is guilty 11 of swindling by obtaining money from J.V. and O.V. after falsely telling them that 12 he would invest their funds in an entity he knew was a sham and that Relator 13 knowingly created, forwarded and used the forged B.E. Investment Group receipt in 14 furtherance of his scheme to swindle funds from J.V. and O.V. 15 B. Violating Public Peace and Order 16 The crime of Violating Public Peace and Order under Lithuanian law requires 17 proof that “a person who, by defiant conduct, threats, taunting or acts of vandalism, 18 demonstrates disrespect to the surrounding people or the environment in a public 19 place and thereby disrupts public peace or order.” (ECF No. 19 at 34.) Here, 20 Lithuania asserts that Relator verbally confronted and struck the victim D.V. in the 21 face at a nightclub in Siauliai, Lithuania, on February 22, 2009. Evidence has been 22 presented from D.V., as well as witnesses from the nightclub (specifically, E.V., 23 R.V., J.B., M.B., A.K. and L.V.). Two specialist (expert) reports were also provided 24 by Lithuania, both of which conclude that D.V. suffered a contusion and bruise on 25 his left cheek, caused by a hit from a solid blunt object which could possibly have 26 been a fist. Although Relator has pointed to certain inconsistencies between the 27 witnesses, D.V., E.V., and R.V. all stated that Relator hit D.V. at least twice in the 28 face on the night in question. (ECF No. 19 at 56-47, 83, 85-86, 89-90.) D.V. and 1 || E.V. also both reported that Relator shouted at D.V. and threatened to kill him. (ECF 2 || No. 19 at 56, 83, 85-86, 89-90.) The two specialists corroborated the nature of D.V.’s 3 || injuries. The Court finds that inconsistencies in other aspects of the witness 4 || statements are not sufficiently material to discredit their consistent evidence on the 5 || key issue of Relator striking D.V. at the nightclub. 6 Thus, having reviewed the evidence presented with the Government’s request 7 || for extradition, the Court finds it sufficient to establish probable cause that Relator 8 || verbally assaulted D.V., struck D.V. in the face, and thereby committed the offense 9 || of violating public peace and order.” As discussed above, Relator is not extraditable 10 || to Lithuania on this offense alone, but because Relator is extraditable for swindling 11 || or forgery, he may also be extradited under the Treaty for violating public peace and 12 || order. 13 | VI. HUMANITARIAN CONCERNS 14 In his opposition brief, Relator presented evidence about inhumane conditions 15 || in Lithuanian prisons and the hardships he would face if incarcerated there, 16 || particularly given his advanced age and his physical and mental infirmities: 17 . Recently, the Council of Europe, through the European 18 Committee for the Prevention of Torture and Inhuman or Degrading 19 Treatment or Punishment (“CPT”), reported disturbing treatment and 50 conditions at Lithuanian prisons. See COUNCIL OF EUROPE, Report to the Lithuanian Gov’t (June 25, 2019), https://www.coe.int/en/web 21 /cpt/-/the-cpt-publishes-a-report-on-lithuania (attached here at Ex. A 22 [ECF No. 55-2]). In 2019, The CPT reported its “regret[] to note that 23 many of’ its previous recommendations concerning the Lithuanian 5A prison system had “still not been implemented.” (See Ex. A at p. 3.) This 25 || 2 The Court has considered notations in the record regarding what were apparently adverse 26 || preliminary rulings or orders by Lithuanian courts in connection with this charge against Relator. Because the current charge is authorized by a Lithuanian court and has been presented in 27 || compliance with the Treaty, the Court concludes that earlier rulings by the Lithuanian court do not preclude a finding that — based on the evidence submitted with the extradition request — probable 28 |! cause exists regarding the offense of violating peace and public order. 1 included the amount of space per prisoner, excessive force, “truly 2 extraordinary levels of inter-prisoner violence, intimidation and exploitation” in particular prisons, and ineffective investigation into [3] “numerous allegations of mass physical ill-treatment of prisoners.” (Id.) 4 (emphasis in original). 5 For example, “[t]he delegation was again inundated with allegations of prisoners having been subjected to violence (including [6] violence of a sexual character and forcing fellow prisoners to perform [7] slave labour) from the members of informal prisoner hierarchies,” 8 whose power was “facilitated by a very low prison staff presence (as well as, at least to a certain degree staff collusion and corruption).” (Id. [9] at 13) (emphasis and footnotes omitted). Prisoners who sought [10] protection “had to spend months (usually 6 months) if not years in small 11 and often dilapidated cells . . . de facto amounting to solitary 12 confinement for those prisoners who were accommodated alone.” (Id. at 14.) In other words, “prisoners asking for protection received instead [13] isolation and punishment.” (Id.) In fact, “some inmates were— 14 according to their own words—so desperate to be taken away from the 15 main accommodation [in these prisons] that they were prepared to kill a fellow inmate, only to be able to obtain the much sought-after [16] disciplinary segregation measure and thus feel safer than in their [17] ordinary unit.” (Id.) 18 The CPT further related how, “[t]o make the dismal picture complete, many prisoners told the delegation that they had sought [19] placement in KTP [i.e., the punishment blocks] because of the perceived [20] threat of being forced to become drug addicts and out of fear of 21 contracting HIV and hepatitis C.” (Id.) The CPT concluded “[t]his 22 situation is clearly totally unacceptable.” (Id.) [ECF No. 55 at 24-25.] 23 In light of those conditions in Lithuanian prisons, Relator urges that 24 humanitarian considerations weigh heavily against extradition in his case: 25 Exposing anyone to such conditions[in Lithuanian prisons]is “so antipathetic” to our nation’s “sense of decency” that they warrant [26] applying an exception to the non-inquiry principle. . . . Here, though, 27 Mr. Sassounian would be especially vulnerable to these “totally 28 unacceptable” conditions. He is 77 years old, diabetic, and generally 1 physically frail. In his state, he would be a target to the rampant violence 2 and corruption plaguing Lithuanian prisons. Moreover, according to the 3 attached report of psychologist Dr. Stacey Wood, he “suffers from Mild Cognitive Impairment (‘MCI’) in the area of memory and new 4 learning.” (Ex. B, Dr. Stacey Wood Report at p. 6.) Dr. Wood explains 5 that “MCI is considered to be a stage between normal aging and 6 dementia where an individual retains functional abilities but have at least one cognitive domain that is significantly lower than expected.” 7 « oe (Id.) “Most but not all individuals with an MCI diagnosis will eventually 8 decline, as MCI increases the risk of a dementia diagnosis in the future 9 (3 - 6 years).” Ud.) Meanwhile, Mr. Sassounian also appears to suffer Lo from Major Depressive Disorder. (/d.) Dr. Wood notes how “[t]he emergence of depression in later life is itself a risk factor for developing 11 a dementia syndrome from all causes.” (/d.) 12 There is every reason to believe that Mr. Sassounian’s conditions 13 would deteriorate while subjected to the inhumane conditions reported in Lithuanian prisons. Exacerbating the risks of such deterioration is the 14 dearth of adequate health care at the prisons. In 2019, the CPT reported 15 how, in one of Lithuania’s prisons, there had been a vacancy for the 16 psychiatrist position for 15 years until March 2018. (Ex. A at p. 22.) Even then, the new psychiatrist was only a part-time “retired person who [7] lives some 80 km from the prison.” (/d.) In these conditions, Mr. 18 Sassounian would suffer disproportionately more compared to others 19 without his mental health issues. [ECF No. 55 at 25-26. ] 20 This evidence from Relator raises serious questions about the surrender of an 21 || elderly and increasingly infirm man to a country whose prisons are reported to fall 22 | well below minimum humanitarian standards — so that he may stand trial on charges 23 || concerning an alleged financial crime and two punches thrown in a bar from more 24 || than ten years ago. 25 The government responds that humanitarian issues are not relevant now 26 || because the Court lacks authority to deny an extradition certification due to foreign 27 prison conditions; instead, the United States Secretary of State has “sole discretion [11] 1 ||... to refuse extradition on humanitarian grounds... .” Quinn v. Robinson, 783 F.2d 2 || 776, 789-90 (9th Cir. 1986). This principle of “non-inquiry” derives from the fact 3 || that it is the Executive Branch that ensures the United States upholds its obligations 4 || under extradition treaties and evaluates claims of possible mistreatment by a foreign 5 || state. “It is not that questions about what awaits the [relator] in the requesting a 6 || country are irrelevant to extradition; it is that there 1s another branch of government, 7 || which has both final say and greater discretion in these proceedings, to whom these 8 || questions are more properly addressed.” United States v. Lui Kin-Hong, 110 F.3d 9 || 103, 111 Uist Cir. 1997). To counter this position, Relator cites dicta from Emami v. 10 || U.S. Dist. Court for N. Dist. of California, 834 F.2d 1444, 1453 (9th Cir. 1987), for 11 || the proposition that factual considerations might someday warrant development of 12 || an exception to the “non-inquiry” principle. However, Relator also concedes that no 13 || federal court decision has yet denied extradition based on humanitarian concerns, and 14 || the “non-inquiry” principle remains controlling. (ECF No. 55 at 19.) Thus, the Court 15 || concludes that the humanitarian concerns raised by Relator — albeit significant — are 16 || beyond the scope of the present proceedings and instead need be raised before the 17 || Secretary of State when surrender of Relator to Lithuania is considered. 18 | VII. CONCLUSION 19 Because the government has presented competent evidence establishing 20 || probable cause that Relator is guilty of the offenses of swindling, forgery, and 21 || violating public peace and order and because the other requirements for extradition 22 || have been met, the Court grants the government’s request for a certification that 23 || Manuel Dikran Sassounian is subject to extradition under 18 U.S.C. § 3184 and the 24 || Treaty. 25 Nevertheless, the Court believes that the circumstances of this case — namely 26 || Relator’s deteriorating physical and mental health, the reported conditions in 27 || Lithuanian prisons, and the nature and timing of the charged offenses — present [12] 1 || serious humanitarian concerns and warrant careful consideration by the Secretary of 2 || State in deciding whether Relator should be surrendered to Lithuania. 3 IT IS SO ORDERED. [4] 5 || DATED: 3/9/2020 Mek— ALEXANDER F. MacKINNON 8 UNITED STATES MAGISTRATE JUDGE