In re Berrocal

• Decision Date: 07 July 2017
• Docket Number: Case No. 17–22197–MC–TORRES
• Citation: 263 F.Supp.3d 1280
• Parties: In the MATTER OF the EXTRADITION OF RICARDO ALBERTO MARTINELLI BERROCAL
• Court: U.S. District Court — Southern District of Florida

263 F.Supp.3d 1280

In the MATTER OF the EXTRADITION OF RICARDO ALBERTO MARTINELLI BERROCAL

Case No. 17–22197–MC–TORRES

United States District Court, S.D. Florida.

Entered July 7, 2017

Adam S. Fels, United States Attorney's Office, Miami, FL, Christopher J. Smith, Rebecca A. Haciski, US Department of Justice, Washington, DC, for Plaintiff.

Marcos Daniel Jimenez, Marcos D. Jimenez, P.A., John Richard Byrne, Jordi Carlosantiago Martinez–Cid, Leon Cosgrove, Coral Gables, FL, for Defendant.

ORDER ON MOTIONS RELATED TO RELEASE ON BAIL

EDWIN G. TORRES, United States Magistrate Judge

Some time ago a scholarly work in the Nation's leading law journal foretold that extradition law would become a more important part of the United States legal experience, pointing to "[t]he multi-country transactions of the contemporary world economy, the clash of late-twentieth-century governmental ideologies, the ease and speed of modern travel, and the steady increase in prosecutions for complex economic crimes...." J. Kester, Some Myths of United States Extradition Law, 76 Geo. L.J. 1441, 1443 (1988). That forecast has undoubtedly proven to be true as illustrated by this particular case.

This case involves an extradition request by the Republic of Panama, approved by the United States Department of State, for the arrest and extradition of Ricardo Alberto Martinelli Berrocal—the former President of Panama. The Supreme Court of Panama has requested extradition on the grounds of alleged violations of Panamanian law that occurred while President Martinelli was in office. President Martinelli, who is admittedly quite wealthy and who has commercial interests in many countries, left Panama and traveled to the United States where he filed an application for asylum in 2015. While that application remains pending, the Department of State and the United States Attorneys' Office here in Miami have now filed the pending action to authorize his detention and his extradition to Panama pursuant to multiple treaties between the United States and Panama. The immediate matter pending before the Court arises from the United States' Motion for Detention of Defendant Ricardo Alberto Martinelli Berrocal [D.E. 15] as well as Defendant's corresponding Motion For Release on Bail. [D.E. 18].

Contrary to the author's desire that extradition law be modernized through Congressional review and reform, the law that governs extradition today has largely remained rooted in the same principles handed down by the Supreme Court at the turn of the twentieth century.¹ And unfortunately for President Martinelli, one of those firmly-rooted principles is that the power to grant bail in extradition cases "should be exercised only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory...." In re Mitchell, 171 F. 289, 289 (S.D.N.Y. 1909) (Hand, J.).

In exercising the jurisdiction that we are charged with enforcing, and though this case is at its infancy, the Court has reviewed the entire available record to determine if the requirements of justice warrant the rare exercise of the power to grant bail. Though the circumstances involved are indeed extraordinary, and though the Defendant has made a strong case for the grant of bail as a former head of state of an American ally like the Republic of Panama, bail cannot be granted. We conclude instead that the need to enforce our Nation's treaty obligations, as well as the preservation of our leadership role in the proper administration of justice, require that we follow the general rule and Order the Defendant detained while the extradition process is completed. To paraphrase what our Circuit concluded over fifty years ago in an extradition case involving another former head of state, "[n]o amount of money could answer the damage that would be sustained by the United States were the appellant to be released on bond, flee the jurisdiction, and be unavailable for surrender, if so determined. The obligation of this country under its treaty with [Panama] is of paramount importance." Jimenez v. Aristiguieta, 314 F.2d 649, 653 (5th Cir. 1963) (affirming revocation of bond for extradition to Venezuela of former head of military junta charged with corruption).

President Martinelli is, of course, free to waive any further extradition proceedings here and return to Panama expeditiously where he can again seek bail. Or he can elect to avail himself of all the limited process he is entitled to under our law in an effort to stave off extradition. In deference to him, the Court is prepared to expedite either process to the extent possible. But this is not a criminal case where bail would ordinarily be granted. This is an administrative proceeding arising under international law for certification and approval of the State Department's decision to extradite this person at the request of a foreign government. See 18 U.S.C. § 3184. Our law presumes that the Court will commit the Defendant in custody "until such surrender shall be made." Id. We intend to do just that. See Abbott v. Abbott, 560 U.S. 1, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) ("International law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings.").

I. BACKGROUND

A. Panama's Request for Extradition

This case concerns the potential extradition of the former President of the Republic of Panama, Ricardo Alberto Martinelli Berrocal ("Pres. Martinelli") from the United States to Panama. On October 9, 2015, "Harry Diaz, a Justice of the Criminal Chamber of the Supreme Court of Justice of the Republic of Panama, issued an indictment against" Pres. Martinelli for four offenses. [D.E. 1 at 2].

Martinelli Berrocal is charged with (1) interception of telecommunications without judicial authorization, in violation of Article 167 of the Criminal Code of Panama; (2) tracking, persecution, and surveillance without judicial authorization, in violation of Article 168 of the same code; (3) embezzlement by theft and misappropriation, in violation of Article 338 of the same code; and (4) embezzlement of use, in violation of Article 341 of the same code.

Id. at 1–2.

"After Martinelli Berrocal failed to appear in court when summoned for a hearing on the charges, on December 21, 2015, the Supreme Court of Justice issued an order for Martinelli Berrocal's arrest." Id. at 2; [D.E. 12–3 at 3]. In Panama's "Request for Extradition and Arrest for Purposes of Extradition of Martinelli Berrocal," Jerónimo E. Mejía Edward, a Justice of the Supreme Court of Justice of Panama and El Magistrado de Garantías , requested Pres. Martinelli's

arrest for purposes of extradition to the Republic of Panama ... based on the provisional detention order issued on December 21, 2015 by the Supreme Court of Justice of Panama, in which the Court also empowered the undersigned, who is El Magistrado de Garantías appointed to case number 138–15, to take steps to fulfill the provisional detention of Ricardo Alberto Martinelli Berrocal.... The provisional detention ordered by the Supreme Court of Justice remains valid and executable to apprehend [Mr.] Martinelli Berrocal.²

[D.E. 13–1 at 30, 3–4, ¶ 2].

El Magistrado de Garantías is a Justice of the Supreme Court of Panama who, as a pretrial judge, controls the investigative activities during a special proceeding. Id. at 6, ¶7. El Magistrado Fiscal is a Justice of the Supreme Court of Panama who is empowered as a Prosecutor and is entitled to conduct the investigation during a special proceeding. Id. Panama's request for Pres. Martinelli's extradition is a special proceeding under Panamanian law. Id. at 5, ¶5.

B. Background on Pres. Martinelli

In 2009, Pres. Martinelli was elected as President of Panama, and the current President, Juan Carlos Varela, was his vice-president. [D.E. 18 at 2–3]. According to Pres. Martinelli, immediately upon President Varela's election to the presidency in 2014, "President Varela launched numerous criminal investigations into Pres. Martinelli." Id. at 3. Specifically:

Due to President Varela's actions, in February 2015, President Martinelli traveled to the United States, and on July 15, 2015, he filed his asylum application, providing the government with his home address and fingerprints. In his asylum application, President Martinelli openly discussed, in detail, the pending investigations against him, including the investigations into his alleged misuse of government equipment to wiretap and surveil political opponents and members of the Panamanian government. President Martinelli unequivocally denied any involvement in illegal activities. He had his asylum interview with the Department of Homeland Security on March 16, 2017.

Id. at 4.

The government has focused on Pres. Martinelli's reported wealth throughout these proceedings. [D.E. 15 at 20]. In particular:

According to media reports, Martinelli is an extraordinarily wealthy man who owns his own plane, two helicopters, and a yacht. Martinelli Berrocal reportedly owns numerous companies, including the Super 99 supermarket chain in Panama, which generates over $700 million dollars' worth of revenue annually. Martinelli Berrocal is also the owner of several other companies based in Panama, including a media conglomerate called NexTV, S.A.

Id. (internal citations omitted).

Yet, Pres. Martinelli has disputed some of the statements that the government made regarding his holdings during his detention hearing, which was held on Tuesday, June 20, 2017. [D.E. 27; D.E. 34]. According to Pres. Martinelli, the government implied at the hearing that he "was attempting to hide ownership of his plane." [D.E. 34 at 1]. As it turned out:

The plane has a U.S. tail number (N799RM). Under FAA regulations, a plane owned by a foreign individual or corporation may only maintain a U.S. tail number if it is held under a U.S. trustee. Registering such a plane under a U.S. trustee is common aviation

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