In Re: Extradition Application to the Kingdom of the Netherlands, of September 10, 2021

• Court: District Court, District of Columbia
• Decided: April 12, 2022
• Docket: Misc. No. 2021-0158
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: EXTRADITION APPLICATION TO THE KINGDOM OF THE NETHERLANDS OF SEPTEMBER 10, 2021

OLEKSANDR MORGUNOV,

Petitioner, Case No. 21-mc-158 (CRC)

v.

OFFICE OF INTERNATIONAL AFFAIRS, U.S. DEPARTMENT OF JUSTICE,

Respondent.

MEMORANDUM OPINION

Petitioner Oleksandr Morgunov, a Ukrainian citizen, filed suit seeking to halt the United

States government’s efforts to extradite him from the Netherlands on criminal charges pending in

the Southern District of Florida. The Department of Justice’s Office of International Affairs, the

respondent, has moved to dismiss the petition for lack of jurisdiction. Because the Court agrees

that it does not have authority to hear Morgunov’s case, it will grant the motion to dismiss.

I. Background

Morgunov is a Ukrainian citizen who lived and worked for many years in Florida. See

Mot. Quash Ex. 2 at 5–6, ECF No. 1-2 (affidavit in support of extradition request). He was

indicted by a grand jury in the Southern District of Florida for participating in an allegedly illegal

labor-staffing scheme in Key West, Florida. Id. at 6–9. The Superseding Indictment charges

him with one count of conspiracy to harbor aliens and induce them to remain in the United

States, in violation of 8 U.S.C. § 1324(a)(iii), (iv), and (v)(I), one count of money-laundering conspiracy, in violation of 18 U.S.C. § 1956(h), and one count of conspiracy to defraud the

United States, in violation of 18 U.S.C. § 371. See Mot. Quash Ex. 6 at 6–13, ECF No. 1-6

(superseding indictment).

After the original indictment was unsealed, Morgunov attempted to travel back to

Ukraine, through Mexico and then the Netherlands. See Pet’r Mem. at 4, ECF No. 3-1;1 Speedy

Trial Report at 4, United States v. Chugay, 4:21-cr-10008-JEM (S.D. Fla. Sept. 20, 2021), ECF

No. 65 (“Sept. 20 Speedy Trial Report”). He was stopped by Dutch authorities pursuant to a

provisional arrest warrant, and is now in Dutch custody fighting his extradition. Sept. 20 Speedy

Trial Report at 4. The Southern District of Florida has placed Morgunov in fugitive status and

delayed any trial. See Docket Entry of Jan. 11, 2022, United States v. Chugay, 4:21-cr-10008-

JEM (S.D. Fla.). Extradition proceedings remain ongoing in the Netherlands. See Speedy Trial

Report at 6, United States v. Chugay, 4:21-cr-10008-JEM (S.D. Fla. Mar. 28, 2022), ECF No.

138 (“Mar. 28 Speedy Trial Report”).

In December 2021, Morgunov filed suit in this Court, with what he styled a petition to

quash the Department of Justice’s (“DOJ”) extradition warrant to the Netherlands. See Pet. at 1.

He is represented here by counsel for one of his co-defendants in the underlying Southern

District of Florida criminal case, for the limited purpose of challenging his extradition. Id. at 2.

In his petition, Morgunov contends that DOJ’s extradition effort is improper because it fails to

comply with both federal law and the extradition treaty between the United States and the

1 The operative petition, filed at ECF No. 3-1, includes both Morgunov’s petition and an annexed memorandum of points and authorities. The Court refers to the two documents separately, as Pet. and Pet’r Mem., and uses the separate pagination included on each.

2 Netherlands. Id. at 1. He asks for an injunction prohibiting DOJ’s Office of International

Affairs (“OIA”) from pursuing the extradition. Id. at 1–2.

OIA moves to dismiss the action, primarily for lack of jurisdiction but also on the merits.

See Mot. Dismiss at 1, 6, ECF No. 6 (“MTD”). Morgunov opposes. See Opp’n, ECF No. 8. He

also cross-moves for summary judgment on the applicability of the fugitive disentitlement

doctrine, which goes to one of OIA’s alternative arguments for dismissal. See Cross-Mot. Partial

Summ. J., ECF No. 7.

II. Legal Standards

A motion under Rule 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.”

Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). “[T]he plaintiff bears the burden of

demonstrating the court’s subject-matter jurisdiction over its claim by a preponderance of the

evidence.” Marine Wholesale & Warehouse Co. v. United States, 315 F. Supp. 3d 498, 508

(D.D.C. 2018) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). In evaluating a

12(b)(1) motion, the Court “accept[s] as true all uncontroverted material factual allegations

contained in the complaint and ‘construe[s] the complaint liberally, granting plaintiff the benefit

of all inferences that can be derived from the facts alleged and upon such facts determine

jurisdictional questions.’” Id. at 509 (quoting Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011)). In addition, “the court may consider documents outside the pleadings to

assure itself that it has jurisdiction.” Sandoval v. U.S. Dep’t of Just., 322 F. Supp. 3d 101, 104

(D.D.C. 2018) (Cooper, J.).

III. Analysis

In Casey v. Department of State, 980 F.2d 1472 (D.C. Cir. 1992), the D.C. Circuit

expressly held that federal courts do not have jurisdiction over preemptive, collateral attacks on

3 extradition requests. Because Morgunov’s petition is on all fours with the claim the circuit

rejected in Casey, the Court similarly concludes it does not have jurisdiction here.

The plaintiff in Casey sought to prevent his extradition from Costa Rica to face charges

in the Middle District of Florida. Id. at 1473–74. He did so through a suit in this district, in part

on grounds similar to those Morgunov raises here: He alleged that the Department of State had

misrepresented the underlying indictment in its diplomatic communications, seeking to mislead

Costa Rica into improperly extraditing him. Id. at 1474–75. The D.C. Circuit held that the

district court did not have jurisdiction to reach the merits of Casey’s pre-extradition challenge.

Id. at 1476–78. The court noted that, on the merits of any extradition-related claim, principles of

“international comity” mandated that federal courts “give great deference to the determination of

the foreign court.” Id. at 1477 (discussing Johnson v. Browne, 205 U.S. 309, 316 (1907)). But,

the court reasoned, it was impossible to give such deference until foreign extradition proceedings

were “completed”—i.e., until a defendant was extradited to the United States. Id. at 1478. The

court also recognized that “analogies in the doctrine[s] of ripeness, exhaustion, and abstention,”

as well as separation of powers concerns, supported its jurisdictional holding. Id. Casey could

“challenge his extraditability,” the court explained, if and when he was ultimately extradited to

the United States. Id.

Casey directly controls here. Morgunov seeks to quash a live extradition request related

to pending charges in the Southern District of Florida. While a court in the Netherlands has

found him extraditable on the charges in the initial indictment, the government reports that

Morgunov “will likely appeal the Dutch court’s ruling”—a process that could take “as long as

two years.” See Mar. 28 Speedy Trial Report at 6. Until that process concludes, the Court

“cannot afford full deference to the decisions of the foreign court.” Casey, 980 F.3d at 1478.

4 Moreover, “[t]he potential confusion of parallel proceedings and the possibility that the [Dutch]

court will resolve the dispute in such a way as to obviate any need for further American litigation

on the issue also weigh against adjudication in the American courts at this time.” Id.

Morgunov’s efforts to escape Casey are unavailing.

He initially seeks to distinguish the two cases. See Opp’n at 5. But the Court agrees with

OIA that Morgunov’s purported distinctions are all either immaterial or nonexistent. See Reply

at 2–4, ECF No. 10. Morgunov first points out that he is not a U.S. citizen while the plaintiff in

Casey was. He also contends that Casey is distinguishable because certain federal regulations

governing extradition have changed since that decision. But Casey’s reasoning turned only on

general principles of international comity and jurisdiction—not on the citizenship of the

individual subject to extradition nor the ins and outs of any particular regulatory regime. Finally,

Morgunov suggests that Casey does not apply because the respondent here is a component of

DOJ, rather than the Department of State. But DOJ was a respondent in Casey, too. See

Appellant’s Br., Casey v. Dep’t of State, No. 91-5048, 1992 WL 12599904 (D.C. Cir. May 18,

1992). More to the point, the Casey court’s concerns about international comity and separation

of powers apply equally to DOJ and the Department of State in their conduct of extradition

proceedings abroad.

Morgunov next argues that Casey has been cut back or distinguished, pointing to both

D.C. Circuit and out-of-circuit cases. See Opp’n at 6–7. The only binding precedent he cites,

however, confirms the relevant holding in Casey. In United States v. Trabelsi, the D.C. Circuit

affirmed that a federal court “could not review a preemptive extradition challenge without

violating international comity or separation of powers.” 845 F.3d 1181, 1187 (D.C. Cir. 2017).

There, the circuit held only that a defendant could invoke a federal court’s jurisdiction to

5 “challenge his extradition after arriving in the requesting state to face prosecution.” Id.

(emphasis added); see also id. at 1186 (holding that review must be “highly deferential”). Most

of the other cases Morgunov cites, both within and outside this circuit, come in just that

posture—through a post-extradition challenge to an indictment or conviction. See, e.g., United

States v. Tajideen, 319 F. Supp. 3d 445, 469–73 (D.D.C. 2018) (evaluating post-extradition

motion to dismiss indictment); United States v. Kaufman, 858 F.2d 994, 1006–09 (5th Cir. 1988)

(assessing extradition in direct appeal of conviction); Gallo-Chamorro v. United States, 233 F.3d

1298, 1304–08 (11th Cir. 2000) (addressing habeas petition following extradition and

conviction); Antwi v. United States, 349 F. Supp. 2d 663, 669 (S.D.N.Y. 2004) (same).

Although Morgunov does cite a few cases addressing defendants’ pre-extradition

challenges to efforts to bring them to the United States to stand trial, none are from this circuit.

See In re Hijazi, 589 F.3d 401, 403 (7th Cir. 2009); United States v. Firtash, 392 F. Supp. 3d

872, 877 (N.D. Ill. 2019); United States v. Siriwan, No. 09-cr-81, 2011 WL 13057709, at *1

(C.D. Cal. July 28, 2011); United States v. Kashamu, No. 94-cr-172, 2010 WL 2836727, at *3

(N.D. Ill. July 15, 2010). Moreover, all of those courts also had jurisdiction over the underlying

criminal cases, and addressed the defendants’ extradition arguments only in the context of

motions to dismiss the indictments. So, to the extent these cases even could be reconciled with

Casey, they would not green light the pre-extradition consideration of Morgunov’s claims by this

Court, rather than the Southern District of Florida.

In sum, the Court concludes that Casey is directly controlling and precludes the Court

from exercising jurisdiction over Morgunov’s claim. Accordingly, the Court need not address

any of his arguments on the merits, including in his motion for partial summary judgment.

6 IV. Conclusion

For the foregoing reasons, the Court will grant Respondent’s Motion to Dismiss and deny

Plaintiff’s Motion for Partial Summary Judgment. A separate Order shall accompany this

memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: April 12, 2022