In Re: Extradition Application to the Kingdom of the Netherlands, of September 10, 2021 ( 2022 )

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
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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.
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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
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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.
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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
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“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.
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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
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