4th Circ. Says Treaty Doesn't Support Lithuanian's Extradition

By Britain Eakin | August 24, 2023, 5:46 PM EDT ·

A split Fourth Circuit panel on Thursday revived a Lithuanian man's bid to avoid extradition, ruling that Lithuania did not comply with the terms of a treaty with the U.S. requiring it to provide a document showing that the man had been criminally judged.

The majority on the three-judge panel ruled that the U.S. Department of State's interpretation of the 2001 extradition treaty with Lithuania did not support the agency's position that documents outlining the allegations against Darius Vitkus that Lithuania provided were sufficient to fulfill the treaty obligations, according to the published opinion.

The State Department's interpretation of the "charging document mandate" in the treaty did not flow from the treaty's language, the majority ruled, holding that the district court erred in adopting it. The majority reversed and remanded a district court decision that had approved Vitkus' extradition.

"We agree with Vitkus that the treaty's charging document mandate plainly and unambiguously requires Lithuania to support an extradition request with an indictment — or some comparable legal instrument — that has initiated criminal charges against Vitkus in that country. Because the notifications of suspicion and suspect decisions fail in that respect, they cannot be 'the charging document' required by the charging document mandate," the opinion said.

U.S. District Judge Michael S, Nachmanoff of the Eastern District of Virginia had accepted the State Department's position that the charging document did not need to "take any particular form" and did not need to be analogous to a U.S. indictment. The district court therefore deferred to the agency's interpretation of the treaty, ruling that the notifications of suspicion and suspect decisions Lithuania provided detailing the allegations against Vitkus for theft, fraud and tax evasion were sufficient.

But the panel said the language of the charging document mandate suggests otherwise, because it requires a copy of "the" charging document. The majority said U.S. Supreme Court precedent has determined that when an article — in this case "the" — appears before a singular noun, it suggests that a discrete document is required.

When applying that rule in this case, the panel said, it's clear that "the charging document" refers to a "document that has initiated criminal charges against a person."

"Accordingly, the charging document mandate is plain and unambiguous, and it cannot be fulfilled by some document (or set of documents) that fails to perform the charging function — even if it or they contain similar information to "the charging document," the decision said.

The notifications of suspicion and suspect decisions Lithuania provided are more like the U.S. equivalent of subject and target letters, which advise potential defendants that "they are either a 'subject' or a 'target' of a federal criminal investigation," the opinion said. But those letters, the panel noted, do not perform a charging function.

"The notifications of suspicion and suspect decisions relied on by the secretary of state did not initiate criminal charges against Vitkus. They simply characterize him as a suspect, and thus do not satisfy the plain and unambiguous language of the treaty's charging document mandate," the decision said.

U.S. Circuit Judge A. Marvin Quattlebaum Jr. parted ways with his colleagues, saying in a dissent that the district court's interpretation of the treaty was plausible.

"So even if Vitkus' reading of it was as well, the district court did not abuse its discretion," the dissent said.

The treaty does not define charging document, Quattlebaum said, and the evidence the State Department presented reasonably supported a broader interpretation. Moreover, he said, the U.S. has regularly extradited people who are wanted for prosecution but haven't been formally charged in cases where they can't be charged until they are returned to their home countries.

Lithuania sought Vitkus' extradition in 2015. According to the panel's decision, Lithuanian authorities began investigating him in 2008 when he served as the director of a real estate business, looking into whether he fraudulently induced someone to sell an apartment to him. Authorities summoned him in 2009 over a bank loan he never repaid, but Vitkus said police officers never questioned him about that. Instead, they "tied him to a chair, beat him, deprived him of water and burned him with cigarettes," the decision said.

"The officers further tortured Vitkus by placing a gas mask over his head and intermittently restricting his air intake. During the torture incident, Vitkus recalls that he was questioned about his political activities," the panel's decision recounts. 

Lithuanian authorities launched a second investigation in 2009, looking into whether he misappropriated funds from the real estate business, failed to report all taxable income and fraudulently sold an apartment belonging to the business. 

Vitkus came to the U.S. in 2010, after which Lithuanian authorities launched a third investigation into whether he forged documents while conducting real estate business. Vitkus sought asylum and the Board of Immigration Appeals determined in 2014 that he qualified for withholding of removal because of his treatment at the hands of Lithuanian police.

U.S. Circuit Judges Albert Diaz, Robert B. King and A. Marvin Quattlebaum Jr. sat on the panel for the Fourth Circuit.

The Department of Justice did not immediately return a request for comment. Counsel for Vitkus was not immediately available to comment.

Vitkus is represented by Fairuze Sofia of the Sofia Law Firm.

The U.S. officials, including Secretary of State Antony Blinken and Attorney General Merrick Garland, are represented by Jessica D. Aber and Elizabeth A. Spavins of the U.S. Attorney's Office for the Eastern District of Virginia, and by Kenneth A. Polite Jr., Rebecca Haciski, Bruce Carlton Swartz and Christopher S. Strauss of the U.S. Department of Justice.

The case is Darius Vitkus v. Antony Blinken, case number 22-6901, in the U.S. Court of Appeals for the Fourth Circuit.

--Editing by Karin Roberts.

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