Guevara v. Republic of Peru

• Citation: 468 F.3d 1289
• Decision Date: 01 November 2006
• Docket Number: No. 05-16235.,05-16235.
• Parties: Jose GUEVARA, Plaintiff-Appellant, v. REPUBLIC OF PERU, Ministerio Del Interior, Antonio Ketin Vidal, Fernando Rospigliosi, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

468 F.3d 1289

Jose GUEVARA, Plaintiff-Appellant, v. REPUBLIC OF PERU, Ministerio Del Interior, Antonio Ketin Vidal, Fernando Rospigliosi, Defendants-Appellees.

No. 05-16235.

United States Court of Appeals, Eleventh Circuit.

November 1, 2006.

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Matthew Kennedy, Boca Raton, FL, Carlos Fernando Gonzalez, Diaz, Reus, Rolff & Targ, LLP, Miami, FL, for Guevara.

Gustavo Gutierrez, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, CARNES and HILL, Circuit Judges.

CARNES, Circuit Judge:

This appeal presents the issue of whether a foreign state's offer of a reward in return for information enabling it to locate and capture a fugitive falls within the Foreign Sovereign Immunities Act's commercial activity exception to sovereign immunity. For the reasons that follow, we conclude that it does.

I.

Vladimiro Lenin Montesinos Torres served as an advisor to Peruvian President Alberto Fujimori and as the head of Peru's National Intelligence System during the 1990s. (Compl. ¶ 8). He is currently in the midst of a series of corruption trials in that country. The allegations are that Montesinos committed a host of crimes while he was in office, including arms trafficking, drug dealing, money laundering, extortion, and more than a few murders. Id. According to declassified documents from the United States Southern Command, the nerve center responsible for this country's military operations in Latin America, Montesinos has "been compared variously to such sinister figures as Rasputin, Darth Vadar, Torquemada and Cardinal Richelieu." United States Southern Command, Information Paper (Jan. 6, 1997). The picture is one of a man who has never been troubled by anything resembling a moral scruple, and the facts about how he was brought to justice form the stage on which this lawsuit plays.

For decades journalists and politicians had been leveling accusations of corruption against Montesinos, but for a long time none of them stuck. Things began to change on the evening of September 14, 2000, when an opposition lawmaker aired on Peruvian national television a video showing Montesinos handing a bribe to a congressman-elect. See Clifford Krauss, Fujimori's Fall, N.Y. Times, Dec. 3, 2000, § 1, at 1.¹ That alone might not have done him in, but as it turned out Montesinos was like a serial killer who relishes the opportunity to relive his crimes—he had videotaped many of his dirty deeds. Id. Peruvian authorities seized from Montesinos more than 700 videotapes incriminating him in a host of crimes. See Jane Holligan, Bribes, Lies, and Videotape in Peru, Bus. Week Online, Feb. 2, 2001. On September 16, 2000, President Fujimori, facing public pressure, announced that he was dissolving the intelligence agency and that he would step down after holding new elections. See N.Y. Times, supra.

Jail time seemed imminent for Montesinos, but the former spy chief was also something of a magician. Over the years he had managed to make many of his enemies, including journalists, disappear, and he had one more magic act up his sleeve. Thomas Catan, The Sins of Montesinos, The Fin. Times Mag., July 26, 2003, at 15. In October 2000, Montesinos slipped out of the country on a yacht bound for the Galapagos Islands, sailed on to Venezuela, and visited a plastic surgery clinic. Then he vanished. Id.

An international manhunt ensued. In November of 2000, Peru appointed a special prosecutor to investigate the intelligence system's net of corruption and to see that those involved were convicted and punished. (Compl. ¶ 11). The same month the prosecutor issued national and international arrest warrants for Montesinos. Id. Antonio Ketin Vidal, the Minister of the Interior of Peru, worked with international police agencies to coordinate the search. Id. Despite a media frenzy, the trail quickly grew cold. Fin. Times Mag., supra.

Peru needed to generate new leads. To do so, Interim President Valentin Corazao issued Emergency Decree No. 049-2001, which established a five million dollar reward for accurate information enabling the authorities to locate and capture Montesinos. (Compl. ¶ 12). Article One of that decree provided that Peru thereby:

Establish[ed] a financial reward in the amount of U.S. $5,000,000.00 (FIVE MILLION 00/100 UNITED STATES DOLLARS), which shall be given to the person or persons who provide(s) accurate information that will directly enable locating and capturing Vladimiro Lenin Montesinos Torres. In the event several persons provide the said information, the financial reward shall be divided among them.

(Compl.Ex. A). Article Three of the decree defined "accurate information":

For purposes of this Emergency Decree, accurate information shall be that [information] provided through any means to the Special High Level Committee and which enables locating and capturing Vladimiro Lenin Montesinos Torres, who is wanted.

Id. (bracketed word in original)

Enter the plaintiff. Jose Guevara had met Montesinos in Venezuela in mid-December 2000. (Compl. ¶ 15). Montesinos needed a safe-house, and Guevara agreed to provide it. Id. Guevara also provided Montesinos with a security detail, which gave him complete knowledge of the fugitive's whereabouts. (Compl. ¶¶ 15-16).

Guevara was easier to track down than Montesinos. In June 2001, F.B.I. agents located and detained Guevara in Miami. (Compl. ¶¶ 17-18). The agents told him that the United States intended to pursue criminal charges against him unless he gave up Montesinos. (Compl. ¶ 18). They also reminded Guevara of Peru's reward offer. Id. Faced with a choice of jail time and loyalty to Montesinos or five million dollars and freedom, it did not take Guevara long to make up his mind.² Guevara not only disclosed Montesinos' hiding place and telephone number but also arranged to have him delivered into the hands of the Venezuelan intelligence agency. (Compl. ¶ 22). Montesinos was arrested as a result of the information Guevara provided and the assistance he rendered, but for reasons that it has not disclosed in this case Peru has refused to pay him the promised reward. (Compl. ¶ 1).

II.

Guevara filed this lawsuit in the Eleventh Judicial Circuit of Florida, and it was removed under 28 U.S.C. § 1441(d) to the United States District Court for the Southern District of Florida. The lawsuit claims breach of contract, breach of contract implied in law, fraudulent inducement, and fraudulent misrepresentation. The named defendants include The Republic of Peru; its Ministry of the Interior; Antonio Ketin Vidal, who was the Minister of the Interior at the time of these events; and Fernando Rospigliosi, who succeeded Vidal in that office. The Republic of Peru and the Ministry of the Interior filed a motion to dismiss, contending that they are immune under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-11. Vidal and Rospigliosi filed a motion to dismiss contending that as agents of the Republic of Peru they are likewise entitled to sovereign immunity. The two individual defendants also asserted that the district court lacked personal jurisdiction over them.

In an order entered on October 6, 2005, the district court concluded that Peru's actions did not fit under any exception to the FSIA and therefore both the nation and its Ministry of the Interior were entitled to sovereign immunity. On October 14, 2005, the court entered another order concluding that Peru's sovereign immunity protected the two individual defendants, who had been acting in their official capacity. On those bases, the court dismissed the complaint for lack of jurisdiction and denied all other pending motions as moot.

Guevara appealed the judgment dismissing his complaint. The individual defendants, in addition to urging that we affirm the dismissal on the grounds stated by the district court, have also pressed their position that the district court lacked personal jurisdiction over them.

III.

A.

The Foreign Sovereign Immunities Act provides the sole basis for obtaining subject matter jurisdiction over a foreign sovereign in the United States. Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1324 (11th Cir.2003). The Act provides a general grant of immunity for foreign governments, 28 U.S.C. § 1604, subject to specific statutory exceptions. The one at issue in this case is the commercial activity exception. 28 U.S.C. § 1605(a)(2). It provides that:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—. . . (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

Id.

Peru contends, and the district court agreed, that offering a reward for capturing a fugitive involves uniquely sovereign objectives, and for that reason does not constitute a commercial activity. Guevara responds that the dispositive issue is whether private actors could similarly offer a reward for information leading to the capture of a fugitive. They can, he says, and it follows that the activity is "commercial" as that term is used in the Act.

B.

To decide this issue we need to mark the boundaries of the "commercial activity" exception as it is used in the FSIA. Examining the text of the Act helps some. It says that "commercial activity" is:

either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than...